O.  Qecuii^ 


^^0  /^ ^4  4^  K  :^  ^V-^  ^^^^  ^/    "       ' 


SELECTION  OF  C 


ON    THE 


LAW    or    CONTRACT 


EDITED  AND  ANNOTATED 

BT 

SAMUEL   WILLISTON 

WELD    PROFESSOR    OF    LAW   IN    HARVARD    UNIVERSITY 


in  two  volumes 
Vol.  L 


BOSTON 
i:.ITTLE,  BROWN.  iVND   COMPANY 

1903 


Entered  according  to  Act  of  Congress,  in  the  year  1879, 

By  C.  C.  Langdkll, 
In  the  office  of  the  Librarian  of  Congress,  at  Washington. 

Copyright,  1S94.  190S. 
Bt  Samuel  "Willibtoii. 


W47 

I/.  I 


PREFACE. 


THE  plan  of  this  book  needs  little  explanation.  I  have  en- 
deavored, in  the  light  of  all  that  has  been  done  before,  to 
prepare  a  selection  of  cases  on  the  law  of  contracts  adapted  to 
the  use  of  students.  In  order  to  cover  the  subject  fairly  in  two 
volumes  of  reasonable  size,  I  have  been  obliged  frequently  to 
shorten  the  reports  of  cases.  Arguments  of  counsel  have  been 
generally  omitted,  and  where  the  opinion  of  the  court  contains 
an  adequate  statement  of  facts,  the  opinion  only  has  been  printed. 
I  have  thought  this  general  statement  would  be  sufficient  warn- 
ing to  the  reader  of  such  omissions.  When  other  changes  from 
the  original  reports  have  been  made,  they  are  specifically  indi- 
cated. Head-notes  are  of  course  omitted,  and  for  the  same  reason 
the  headings  of  chapters  and  sections  are  general,  and  the  sub- 
division of  topics  is  not  always  as  minute  as  might  be  convenient 
to  one  seeking  authority  on  a  particular  matter.  Headings  of 
sections  may  easily  be  made  a  key  to  the  result  of  the  cases,  and 
it  is  desirable  for  the  student  to  work  out  this  result  for  himself 
with  the  aid  only  of  such  suggestion  as  proves  necessary  in  the 
class  room.  The  annotations,  for  the  same  reason,  are  mostly 
confined  to  lists  of  cases  in  accord  or  oj)posed  to  the  case  which 
is  printed.  An  index  at  the  end  of  the  second  volume,  I  hope, 
will  make  tlie  contents  of  the  book  reasonably  accessible  without 
being  open  to  the  objection  of  giving  the  student  the  answer 
before  he  has  done  the  problem. 

Every  teacher  of  law  who  prepares  a  volume  of  cases  for  the 
instruction  of  students  is  consciously  or  unconsciously  indebted 
to  the  work  of  Professor  Langdell;  but  an  indebtedness  greater 
than  that  which  every  worker  owes  to  the  pioneer  in  his  chosen 
field,  must  here  be  acknowledged.     The  law  of  contracts  was  the 


44651 


J^^JS 


IV  PREFACE. 

subject  selected  b}^  Professor  Langdell  for  his  first  collection  of 
cases.  That  collection,  first  published  in  1871  and  in  a  second 
edition  in  1876,  has  been  used  continuously  since  its  publication 
in  the  Harvard  Law  School,  and  in  recent  years  in  other  law 
schools.  The  development  of  the  law  during  the  past  thirty 
years  has  now  made  it  desirable  to  substitute  a  new  book  for  one 
which  must  be  regarded  as  marking  an  epoch  in  legal  education. 
In  preparing  the  new  book,  I  should  have  found  it  impossible, 
had  I  made  the  attempt,  to  avoid  deriving  benefit  from  the  selec- 
tion and  arrangement  in  the  earlier  book.  Fortunately,  no  such 
effort  has  been  necessary,  since  Professor  Langdell  has  kindly 
permitted  me  to  make  such  use  as  I  wished  of  his  work.  Of  this 
permission  I  have  freely  availed  myself. 

SAMUEL  WILLISTON. 
Cambridge,  1903. 


CONTENTS. 


CHAPTER  I. 

Page 

FORMATION   OF   SIMPLE   CONTRACTS 1 

Section  I. 

Mutual  Assent 1 

(a)  Offer .  1 

(b)  Duration  and  Termination  of  Offers    .     .    .    .     »    .     .  27 

(c)  Acceptance o  62 

Section  II. 

Consideration 150 

(a)  Early  Development =.     .  150 

(b)  General  Principles 164 

(c)  Executed  Consideration  and  Moral  Consideration      .     ,  311 

CHAPTER  II. 

FORMATION   OF   CONTRACTS   UNDER  SEAL  ....  363 

Section   I. 
Formalities  of  Execution .....363 

Section  li. 

Delivery     .....         ..o...  375 

Section  III. 

Consideration      ..                   ....o 379 


VI  CONTENTS. 

CHAPTER   III. 

Page 
PARTIES   AFFECTED   BY   CONTRACTS 383 

Section  I. 
Contracts  for  the  Benefit  of  Third  Persons    .     .     ,     *     .     383 

Section   II. 
Assignment  of  Contracts ..••.     419 

Section  III. 
Joint  Obligations ••••••.     468 

CHAPTER   IV. 
THE   STATUTE  OF  FRAUDS 504 

Section  I. 

Contracts  within  the  Statute 504 

(a)  Guarantees        504 

(b)  Agreements  in  Consideration  of  Marriage 529 

(c)  Contracts  for  the  Sale  of  Land 532 

(d)  Agreements  not  to  be  performed  within  a  Year    .     .     .  562 
(c)  Contracts  for  the  Sale  of  Goods 591 

Section  II. 
Satisfaction  of  the  Statute •     .     •    .     •     606 

CHAPTER  V. 
PERFORMANCE  OF   CONTRACTS 676 

Section   I. 

Express  Conditions 676 

(a)  Conditions  Precedent 676 

(b)  Conditions  Subsequent 721 


TABLE   OF   CASES. 


Page 
Abbott  V.  Doane  i.  246 
Ackert  v.  Barker  ii.  421 
Adams  »'.  Lindsell  i-  4 
Ahem,  Blaisdell  v.  ii.  423 
Albanv,  Sturlyn  v.  i.  155 
Albert's  Ex.  v.  Ziegler's  Ex.  ii.  652 
Alexandre,  Wells  v.  i.  182 
Allen's  Case  i-  421 
Alien  V.  Harris  "•  «00 
"  V.  Milner  ii-  637 
Ambergate,  &c.  Ry.  Co.,  Cort  v.  ii.  200 
American  Publishing  Co.  v.  Walker  i.  68 
Anchor  Electric  Co.  v.  Hawkes  ii.  378 
Anderson  v.  May  ii.  300 
Andrews,  Blandford  v.  ii.  178 
Anonymous  i.  150,  370,  379,  ii.  1 
Arkansas  Valley  Co.  v.  Belden  Min- 
ing Co.  i.  452 
Armstrong  i'.  Levan  i.  356 
,  Nash  V.  i.  306 
"  ,  Seymour  v.  i.  23 
Arnold,  Curamings  v.  i.  671 
"  V.  Nichols  i.  413 
Ashburnham,  Jones  v. 
Atkins  V.  Hill 
Atkinson  v.  Settree 

"         ,  Tweddle  w. 
Atwell  V.  Jenkins 
Atwood,  Fashion  i\ 
Austin  V.  Whitlock 
Austin  Real  Estate  Co.  v.  Bahn 
Averill  v.  Hedge 
Avery,  Scott  v. 
Ayer  v.  Western  Union  Telegraph 

Co.  i.  69 


B. 


Babcock,  Bates  v.  i.  544 

"      V.  Hawkins  ii.  613 

Back  well  v.  Litcott  i.  422 

Bacon  i-.  Reich  ii.  664 

Bagge  V.  Slade  i-  2-36 
Bahn,  Austin  Real  Estate  Co.  v.        i.  222 

Bailey  v.  Marshall  i.  521 

"      V.  Sweeting  i.  632 

Baily  v.  De  Crespigny  ii.  286 

Bainbridge  v.  Firmstone  i.  166 

Baker  v.  Higgins  ii.  82 

Balbirnie,  Thurnell  v.  i.  703 

Baldey  r.  Parker  i.  603 

Bale,  Stone  v.  i.  363 


1.271 
i.  318 
i.  270 
i.  385 
i.  175 
i.  422 
i.  370 
i.  22-2 
i.  .33 
ii.  455 


Ball,  Brooks  v. 

"    ,  Capes  l: 
Barber,  Case  v. 
Barker,  Ackert  v. 

"      ,  Price  V. 
Barnard  v.  Simons 
Barnes  v.  Hedley 


Page 
i.  186 
ii.  607 
ii.  599 
ii.  421 
ii.  496 
i.  268 
i.  325 


Bartlett,  Boston  and  Maine  Bail- 
road  V.  i.  27 
Bassett  v.  Hughes  i.  408 
Bate,  Hunt  v.  i.  152 
Bateraan,  Harvey  v.  i.  422 
Bates  V.  Babcock  i.  644 
Batterbury  v.  Vyse  i.  694 
Bayley,  Williams  v.  ii.  438 
Beach,  Work  v.  i.  716 
Beatty,  Royal  Insurance  Co.  v.  i.  140 
Beckwith  i;.  Talbot  i.  640 
Beech,  Ford  v.  ii.  600 
Beecher  v.  Conradt  ii.  150 
Beer,  Foakes  v.  i.  203 
Belden  Mining  Co.,  Arkansas  Valley 

Co.  V.  i.  452 

Bell,  McKnight  v.  i.  556 

Bennett,  More  v.  ii.  385 

Benson  v.  Phipps  i.  219 

Bernard,  Freeman  v.  ii.  636 

Bettini  v.  Gye  ii.  69 

Bidder  v.  Bridges  i.  210 

Bidwell  V.  Catton  i.  269 

Biggers  v.  Owen  i.  67 

Billington  v.  Cahill  i.  583 

Binnington  v.  Wallis  i.  329 

Birnie,  Morgan  v.  i.  688 

Bisbee  v.  Mc  Allen  ii.  550 

Bischoffsheim,  Callisher  v,  i.  285 

Bishop  V.  Eaton  i.  87 

Blaisdell  v.  Ahern  ii.  423 

Blake,  Cad  well  v.  ii.  125 

"     ,  Hanover  Nat.  Bank  v.  ii.  523 

Blake's  Case  ii.  597 

Blakeway,  West  v.  ii.  676 

Blandford  v.  Andrews  ii.  178 

Bluett,  White  v.  i.  199 

Boardman,  Borden  v.  i.  390 

Bohanan  r.  Pope  i-  411 

Boileau,  Edge  v.  '.-.^^^ 

Booker,  Ollive  v.  ii.  65 

Boone  v.  Eyre  ii-  23 

Booth  17.  Eighmie  i.  605 

Borden  v.  Boardman  i.  390 

Borelly,  Christie  v.  ii.  173 

Borrowman  v.  Free  ii.  276 


vm 


TABLE   OF    CASES. 


Bosden  )'.  Tliinne  i.  3il 

Boston,  Loring  v.  i.  29 

"      ,  Pool  V.  i.  255 

Boston,  &o.  U.  R.  Co.  v.  Bartlett         i.  27 

''  "  V.  Nashua,  &c. 


R.  R.  Co. 

ii.  642 

Boiirkniire  i'.  Darnell 

i.  504 

Bourne  v.  Mason 

i.  383 

Boutiiieau,  Herreshoff  v. 

ii.  374 

Bowditcli  V.  New  England  Ins.  Co. 

ii.  561 

Boynton,  Pixley  v. 

ii.  411 

Bradley,  Hayden  v. 

ii.  14(5 

Bridge  v.  Connecticut  Insurance  Co 

.  i.  445 

Bridges,  Bidder  v. 

i.  210 

Briggs,  Callonel  v. 

ii.  15 

,  Riches  v. 

i.  157 

British  Waggon  Co.  v.  Lea 

i.  448 

Brocas'  Case 

ii.  1 

Bronson,  Herbert  v. 

i.  437 

Brooks  V.  Ball 

1.  186 

"       V.  Haigh 

i.  167 

"       ,  Pearce  v. 

ii.  499 

Brown,  Gillinghara  v. 

i.  357 

"      ,  Hunt  V. 

ii.  617 

"     ,  Noice  V. 

ii.  543 

"     ,  Scott  V. 

ii.  515 

Browning,  Lewis  v. 

i.  110 

Bruce,  Lynn  v. 

i.  301 

Bullingham,  Riggs  v. 

i.  311 

Burchell,  James  v. 

ii.  160 

Burkes,  Cator  v. 

i.  4:^.0 

Burr,  Freetli  v. 

ii.  95 

Butler  and  Baker's  Case 

i.  875 

"     ,    C.    F.    Jewett     Publishing 

Co.  V. 

ii  532 

Butterfield  v.  Byron 

ii.  308 

Byrne  i;.  Van  Tienhoven 

i.  41 

Byron,  Butterfield  v. 

ii.  308 

C.    F.    Jewett    Publishing    Co.    v. 

Butler  ii.  532 

C.  R.  I.  &  P.  R.  Co.,  Small  v.  ii.  436 

Cadwallader,  Thomas  v  ii.  18 

Cadwell  r.  Bl.ike  ii.  125 

Cage,  Harrison  v.  i.  172 

Cahen  v.  Piatt  ii.  123 

Cahill,  BiUington  v.  i.  583 

Callan,  Fowler  v.  ii.  4.30 

Callislier  v.  BischoEfsheim  i.  285 

Callonel  (.'.  Briggs  ii.  15 

CainRn,  Wells  v.  ii.  73 

Capes  V.  Ball  ii.  607 

Carwardine.  Williams  v.  i.  72 

Case  V.  Barber  ii.  599 

Catlett,  Dougherty  v.  i.  554 

Cator  V.  Burkes  i.  430 

Cattoii,  Rid  well  v.  i.  269 

Cavanangli  f.  Jackson  i.  559 

Cave,  Payiie  v.  i.  1 

Chalmers,  Ex  parte  ii.  166 

Chapman  v.  Shattuck  i.  447 

Cheesnian,  Good  v.  ii.  610 


Cherry  v.  Heming 

Chicago  Ry.  Co.  v.  Dane 

Child,  Trist  v. 

Christie  v.  Borelly 

Church  V.  Proctor 

Clarencieux,  Holt  v. 

Clark  V.  Marsiglia 

Clarke  v.  Watson 

Claiksville  Land  Co.  v.  Harriman 

Clifford  V.  Watts 

(^lolierie,  Constable  v. 

Codman,  Krell  v. 

Cole,  Pordage  v. 

Coleman,  BVrguson  v. 

Collins  V.  Locke 

Conimings  v.  Heard 

Compton,  Peter  v. 

Comstock,  Raybuni  v. 

Coniers  and  Holland's  Case 

Connecticut  Insurance  Co.,  Bridge  v 

Conrad,  Guild  v. 

Conrad t,  Beecher  v. 

Constable  v.  Cloberie 

Cook,  Guernsey  v. 

"     V.  Lum 

"     V.  Wright 
Cooke  V.  Millard  i. 

"     V.  O-xley 
Coombe  v.  Greene 
Cooper,  Davidson  v 

"        ,  Presbyterian  Church  v. 
Cope  V.  Rowlands 
Cordray,  Runnamaker  v. 
Corlies,  White  v. 
Corrigan,  Gifford  i'. 
Cort  (.'.  Anibergate,  &c.  Ry.  Co. 
Corvvine,  Meguire  v. 
Couch,  Weber  v. 
County    of    Bristol,   Edge    Moor 

Bridge  Works  v. 
Coupland,  Howell  v. 
Cowan  V.  Milbourn 
Cowley  V.  Patch 
Crippin,  Simpson  v. 
Cripps  V.  Golding 
Cross  V.  Powel 

"     ,  AVheat  v. 
Crouch  i\  Martin 
Crowther  v.  Farrer 
Crump,  Martin  v. 
Cumniings  v.  Arnold 
Currie  Hardware  Co.,  Donnelly  v. 
Cusack  V.  Robinson 


678 

i.  138 
ii.  477 
ii.  173 
ii.  507 

i.  174 
ii.  254 

i.  691 
ii.  331 
ii.  291 

i.  676 

i.  .380 
ii.  2 
ii.  416 
ii.  357 
ii.  639 

i.  562 
ii.  260 
ii.  572 
,  i.  445 

i.  507 
ii.  150 

i.  676 
ii.  494 

i.  435 

i.  283 

600  n. 

i.  2 

i.  707 
ii.  658 

i.  191 
ii.  548 
ii.  663 

i.  134 

i.  401 
ii.  200 
ii.  4S3 
ii.  585 

i.  10 
ii.  297 
ii.  512 
i.  493 
ii.  93 
i.  155 
ii.  651 
1.  130 
i.  424 
i.  303 
i.  499 
i.  671 

i.  18 
i.  606 


D 

Dane,  Chicago  Ry.  Co.  v.  i.  138 

Daniels  v.  Newton  ii.  241 

Dannah,  Wright  v.  i.  622 

Darland  v.  Ta\  lor  ii.  655 

Darnell,  Bonrkmire  w.  i.  604 

Davenport,  Robertson  v.  ii.  169 

Davidson  v-  Cooper  ii.  658 

"     ,  England  v.  i.  253 


TABLE   OF   CASES. 


IX 


Page 

Davies,  Offord  v. 

i.  82 

Davis,  Eddy  v. 

ii.  155 

"     V.  Van  Buren 

i.  500 

Dawson,  How  v. 

i.  424 

Day,  McCreery  v. 

ii.  677 

"     V.  McLea 

ii.  628 

De  Crespigny,  Baily  v. 

ii.  286 

Deering  v.  Farrington 

i.  iin 

De  la  Tour,  Hoclister  v. 

ii.  213 

Denton,  Fairlie  v. 

ii.  589 

Derby  v.  Phelps 

i.  689 

Devecmon  v.  Sliaw 

i.  188 

Dewey  v.  Union  School  District 

ii.  322 

Dexter,  Meigs  v. 

i.  378 

Dickinson  v.  Dodds 

i.  60 

Dickinson  Co.,  McMulIan  v. 

i.  180 

Dietrich  v.  Hoefelmeir 

i.  580 

Dingley  v.  Oler 

ii.  236 

Dixon,  Doyle  v. 

i.  676 

Doane,  Abbott  v. 

i.  246 

Dodds,  Dickinson  v. 

i.  50 

Dodge,  Johnson  v. 

i.  542 

Doherty  v.  Hill 

i.  665 

Doll  V.  Noble 

i.  71.3 

Donnelly  v.  Currie  Hardware  Co. 

i.  18 

Dorell,  Herring  v. 

i.  277 

Dorville,  Longridne  v. 

i.  274 

Dougherty  v.  Catlett 

i.  554 

Douglas,  Jell  v. 

i.  474 

Doyle  V.  Dixon 

i.  576 

Duke  of  St.  Albans  v.  Shore 

ii.  24 

Duluth,  &c.  Ky.  Co.,  King  v. 

i.  231 

Dunlop  V.  Higgins 

i.  91) 

Dunpliy  f.  Ryan 

i.  549 

Dunton  r.  Dunton 

i.  262 

Durnherr  v.  Rau 

i.  406 

Dusenbury  v.  Hoyt 

i.  840 

Dutton  V.  Poole 

i.  384 

E. 


Eames  i;.  Preston 

i.  372 

Eastern  Railroad  Co.,  Sears 

V.             i.  25 

Eastwood  V.  Kenyon 

i.  332 

Eaton,  Bishop  v. 

i.  87 

Eckersley  v.  Mersey  Docks 

ii.  471 

Eddy  V.  Davis 

ii.  155 

Edgar,  Green  v. 

ii.  82 

Edge  V.  Boileau 

i.  719 

Edge  Moor  Bridge  Works  v 

County 

of  Bristol 

i.  10 

Edmond's  Case 

i.  317 

Edney,  Mowse  v. 

i.  419 

Edwards,  In  re 

ii.  166 

"        V.  Weeks 

ii.  573 

Eighmie,  Booth  v. 

i.  505 

Eley,  Vitty  v. 

i.  74 

Eliason  v.  Henshaw 

i.  131 

Ellen  I'.  Topp 

ii.  47 

Elmer,  Moore  v. 

i.  315 

Emery  v.  Ohio  Candle  Co. 

ii.  389 

Emley  v.  Perrine 

i.  441 

Empire  Co.  v.  Philadelphia 

&  Read- 

ing  Co. 

ii.  336 

England  v.  Davidson 
Evans  v.  Hoare 
Eyre,  Boone  v, 

F. 

Fairlie  v.  Denton 
Falck  V.  Williams 
Farrer,  Crowther  v. 
Farrington,  Deering  v. 
Fashion  v.  Atwood 
Fenton,  Trueinan  v. 
Ferguson  v.  Coleman 
Fink  V.  Smith 
Firmstone,  Bainbridge  v. 
Fisher,  Martindale  y. 
Fitzgerald,  Gleason  v. 
Fletcher,  Leavitt  v. 
Flower  v.  Sadler 
Flower's  Case 
Foakes  v.  Beer 
Ford  V.  Beech 
Fowler  v.  Callan 
Fox,  Lawrence  v. 

"     V.  Rogers 
Eraser,  Henthorn  v. 
Free,  Borrow  man  v. 
Freeman  v.  Bernard 
Freeth  v.  Burr 
Frith,  Mactier  v. 
Frost  V.  Gage 

"     V.  Knight 


G. 


i.  253 
1.  625 
ii.  23 


ii.  589 
i.  64 
i.  303 
i.  431 
i.  422 
i.  320 
ii.  416 
i.  258 
i.  166 
ii.  172 
ii.  590 
ii.  176 
ii.  448 
ii.  672 
i.  203 
ii.  600 
ii.  480 
i.  393 
ii.  570 
i.  120 
ii.  276 
ii.  636 
ii.  95 
i.  120 
ii.  517 
ii.  221 


Gage,  Frost  v. 

ii. 

517 

Gammons  v.  Johnson 

ii. 

433 

Gardner,  Gray  v. 

i. 

721 

Garst  V.  Harris 

ii. 

383 

Gaskell,  Lee  v. 

i. 

535 

Getman,  Lacy  v. 

ii 

316 

Gibbons  v.  Proctor 

i.  74 

"        V.  Vouillon 

Mi 

591 

Gibbs  V.  Smith 

ii. 

630 

Gibson  v.  Holland 

i 

636 

Gifford  V.  Corrigan 

i 

401 

Gillespy,  Thompson  v. 

ii.  58 

Gillingham  v.  Brown 

i. 

357 

Gleason  v.  Fitzgerald 

ii. 

590 

GloVie  Ins.  Co.,  New  York  v. 

ii. 

326 

Globe    Mut.    Life    Ins. 

Assoc. 

V. 

Wagner 

i. 

685 

Goddard  v.  Binney 

i 

594 

"         ,  Salmon  Falls 

Mfg.  V. 

i. 

612 

Golding,  Cripps  v. 

i 

155 

Goldsmith,  Turner  v. 

ii. 

323 

Goochman,  Jeremy  v. 

i. 

157 

Good  V.  Cheesrnan 

ii 

610 

Goodisson  r.  Nunn 

ii.  33 

Graham,  Hawkins  v. 

i 

709 

"     ,  Hirth  V. 

i 

632 

Grand  Lodge,  National  B 

ank  I'. 

i. 

388 

Grant,  Household  Insurance  Co. 

V. 

i.  95 

"     V.  Porter 

i 

323 

TABLE   OF    CASES. 


Page 

Graves  v.  Johnson  ii.  508 

"       V.  Legg  ii.  61 

Gray  v.  Gardner  i.  721 

"      V.  Sniitli  ii.  279 
Great  Nortiierii  liy.  Co.  v.  Witham    i.  lo6 

Green  v.  Edgar  ii.  82 

Greene,  Coornbe  v.  i.  707 

Greenebauin,  Kuliman  v.  ii.  520 

Greenwood  u.  J^aw  i.  601 

Grey,  ISutton  v.  i.  524 

Griffin,  Lee  v.  i.  591 

Guernsey  c.  Cook  ii.  494 

Guild  c.  Conrad  i.  507 

Gye,  Bettini  v.  ii.  69 


H. 

Haigh  V.  Brooks  i.  167 

liale  ;'.  8paulding  i.  495 

Halsted,  fraver  v.  ii.  278 

liauier  v.  Sidway  i.  201 

llauiilton,  Kendall  v.  i.  486 

Hampden  r.  Walsh  ii.  390 

Hanover  Nnt.  Bank  v.  Blake  ii.  528 

Harbor  v.  Morgan  ii.  610 

Harding  v.  Harding  i.  432 

"          ,  Spencer  v.  i.  8 

Hardy,  Thaeker  v.  ii.  397 
Harrinian,  Clarksville  Land  Co.  r.    ii.  381 

Harris,  Allen  v.  ii.  600 

"      ,  Garst  V.  ii.  3b3 

Harrison  v.  Cage  i-  172 

Harsen,  Lattiniore  v.  i   228 

Hart.  Pellman  v.  i-  448 

Hartford  Ins.  Co ,  Semmes  v.  i.  725 

HartniHU,  Meyer  v.  i-  522 

Hartshorne,  i'honias  v.  ii.  344 

Harvey  v.  Bateman  i.  422 

V.  Merrill  ii  403 

TIatton,  In  re  ii.  620 

Haugh,  Koe  v.  ii-  587 
Hawkes,  Anchor  Electric  Co  .v.        ii.  378 

Hawkins,  Babcock  v.  ii-  613 

"       V.  Grphani  i.  709 

"         ,  Robinson  v.  ii.  650 

Hawley,  Mitcliell  v.  ii.  622 

Hayden  r.  Bradley  ii-  146 

Hayes  v.  Jackson  i.  648 

Haynes,  Hickman  v.  i.  664 

Heard,  Conmiings  v.  ii.  639 

Heather,  Richards  w.  i.  471 

Hedge,  Averill  v.  i.  33 

Hedley,  Barnes  v.  i.  325 

Heim,  Kromer  v.  ii.  615 

Heining,  Cherry  v.  i.  578 
Henry  ('.  Kowell                               11.253/1. 

Ilenshaw,  Eliason  v.  i.  131 

llentliorn  v.  Eraser  i.  104 

Herbert  v.  Bronson  i.  437 

Herreslioff  v.  Boutineau  ii.  374 

Herring  v.  Dorell  i.  277 

Herter  r.  Mullen  ii.  333 

Higgens's  Case  ii.  659 

Higgin,  Shadforth  v.  1.  687 


Page 

Higgins,  Baker  v.  ii.  82 

,  Duniop  V,  i.  90 

Hickman  v.  Haynes  i.  664 

Hilary,  Taylor  v.  ii.  575 

Hill,  Atkins  r.  i.  318 

"  ,  Doherty  v.  i.  655 

Hirth  V.  Graiiam  i.  5-32 

Hoare,  P^vans  v.  i.  625 

"      ,  King  V.  i.  475 

"     I'.  Kennie  ii.  84 

Hoclister  v.  De  la  Tour  ii.  213 

Hodgdon,  Mansfield  v.  i.  66 

Hodge,  Warren  v.  i.  201 

Hoetelnieir,  Dietricii  v.  i.  580 

Hoffman,  Tinn  v.  i.  113 

Holcomb  V.  Weaver  ii.  495 

Holland,  Case  of  Coniers  and  ii  572 

"       ,  Gibson  v.  i.  636 

Holman  v.  Johnson  ii.  497 

Holt  V.  Clarencieux  i.  174 

Hood,  Kane  '•.  ii.  45 

Hook,  Hucklesby  v.  i.  628 

Hopkins  i:  O'Kane  ii.  402 

Houseliold  Insurance  Co.  v.  Grant       i.  95 

Howell  (".  Coupland  ii.  297 

Iloyt,  Dnsenbury  y.  i.  346 

Hucklesby  v.  Hook  i.  628 

Hiigall  II.  McLean  ii.  145 

Hughes,  Bassett  v.  i.  408 

"      ,  Kann  v,  i.  161 

Hull  V.  Johnson  ii.  630 

Hunt  V.  Bate  i-  152 

"     V  Brown  ii.  617 

"     V.  Hunt  i.  529 

"     V.  Livermore  ii.  147 

Hutley  V.  Hutley  ii.  418 

Hyde  v.  Wrench  1.  44 


I. 


Ilsley  V.  Jewett  1.  848 

Insurance  Co.,  Moody  v.  1.  723 


Jackson,  Cavanaugh  v.  i.  559 

"       ,  Hayes  v.  i.  648 

"     V.  Pennsylvania  R.  R.  Co.      ii.  6.32 

Jacson,  Tullis  v.  i.  697 

James  v.  Burchell  ii.  160 

"      V.  Newton  i.  461 

Jamieson  v.  Renwick  1.  266n. 

Jell  V.  Douglas  1.  474 

■Jenkins,  Atwell  v.  i.  175 

.Jeremy  i'.  (joocliman  i.  157 

Jewett,  Ilsley  v.  i.  348 

Jewett  Pul)lishing  Co.  u.  Butler        ii.  682 

Johnson  v.  Dodge  i.  542 

"       ,  Gammons  v.  ii.  433 

"       ,  Graves  v.  ii.  603 

"      ,  Holman  i'.  ii.  497 

"      .Hullv.  ii.630 

Johnston  4>.  Rogers  i.  19 


TABLE   OF   CASES. 


XI 


Pape 
ii.  226 
ii.  90 
i.  271 
i.  623 
i.  115 
ii.  607 
i.  623 


Johnstone  v.  Milling 
Joiiassolin  v.  Young 
Jones  V.  Ashburnliam 
"     V.  Joyner 
"       ,  Pre?cott  V. 
''       ,  Slater  v. 
Joyner,  Jones  v. 

K. 


Kadish  v.  Young  ii.  265 

Kane  v.  Hood  ii-  46 
KeHrney,  Liverpool,  &c.  Insurance 

Co.  V.  i.  681 

Keeley,  ^Yinc•!l  v.  i.  426 

Kelelitley  r.  Watson  i.  483 

Keith  V.  Miles  i.  257 

Kendall  v.  Hamilton  i.  48'J 

Kenvon,  Eastwood  v.  i.  332 

Kesrer.  Maylard  i?.  i-  158 

Kimball,  Kindtfe  v.  1.  346 

King  i\  Dulutli,  &c.  Ry.  Co.  i.  231 

"     I'   Hoare  i-  475 

"     r.  King  ii-  567 

Kingston  v.  Preston  ii.  22 

Kirk  soy  ;•.  Kirksey  i.  190 

Klaliolt,  Wheeler  v.  i.  144 

Knight,  Frost  v.  ii.  "^21 

Krell  r.  Codman  i.  380 

Kronier  v.  Heim  ii.  615 

KuUman  v.  Greenebaum  ii.  520 


L. 


Lacy  V.  Getnian  ii.  316 
Laird  v.  Pirn  ii.  188 
Lakeman  v.  Pollard  ii.  320 
Lamb,  Morton  v.  ii.  37 
Lang,  Schweider  v.  i-  310 
Ljingden  v.  Stokes  ii.  573 
Lattimore  v.  Harsen  i.  223 
Lavery  v.  Pursell  i.  537 
Law,  Greenwood  v.  i.  601 
Lawrence  v.  Fox  i.  393 
Lea,  British  Waggon  Co.  v.  i.  448 
Leavitt  v.  Fletcher  ii.  17tj 
Lee  V.  Gaskell  i.  535 
"  V.  Griffin  i.  591 
"  ,  Loyd  V.  i.  260 
"  ,  Muggeridge  i.  326 
Legg,  Graves  v.  ii.  51 
Leonard,  Stees  v.  ii.  301 
Lcrned  v.  Wannemacher  i.  644 
Levan,  Armstrong  v.  i.  356 
Levy,  Newington  v.  ii.  609 n. 
Lewis  V.  Browning  i.  110 
Lindsell,  Adams  v.  i.  4 
Lingenfelder  v.  Wainwright  Brew- 
ing Co.  i.  228 
Litcott,  Backwell  v.  i.  422 
Littlefield  v.  Shee  i.  330 
Littlewood,  Millwardu.  ii.  552 
Livermore,  Hunt  v.  ii.  147 


Liverpool,    &c.    Insurance     Co. 

Kearney 
Livers,  fScliool  District  v. 
Livingston  v.  Ralii 
Lock  V.  Wright 
Locke,  Coilins  v. 
London  and  Northern  Bank,  In 
London  Commercial  Exchange 

Williams  v. 
Long  V.  White 
Longridge  v.  Dorville 
Lorah  v.  JS'issley 
Loring  v.  Boston 
Loucks,  Parsons  v. 
Loyd  V.  Lee 
Luin,  Cook  V. 
Lynch,  Warren  v. 
Lynn  v.  Bruce 


M. 

M(;Allen,  Bisbee  v. 
M'Chiie,  liipley  i'. 
McClure,  Zuck  v. 
McCreerv  v.  iJay 
McKiiiglit  V.  Beil 
McLea,  Day  v. 
McLean,  Hugall  v. 

"       ,  Stevenson  v. 
McMullan  v.  Dickinson  Co. 
Mactier  r.  Frith 
Magnier,     Kew     Orleans     Associa 

tioM  V. 
Makin  v.  Watkinson 
Maloney  v.  Nelson 
Mandeville,  Welch  v. 
Mansfield  /■   Hodgdon 
March  r.  Ward 
Marshall,  Bailey  i\ 
Marsiglia,  CUirk  v. 
Marstoii  V.  Marston 
Martha's   Vmeyard   R.  R.  Co.,  Os- 

born  V. 
Martin,  Ciouch  v. 
"    r.  Crump 
"    r.  Meles 
Martinilale  v.  Fisher 
Mascagni,  Mittenthaly. 
Mason,  Bourne  v. 
Maxim    Nordenfeldt    Co.,    Norden 

feldt  V. 
May,  Anderson  v. 
Maylard  v.  Kester 
Mayne's  Case 
Meguire  v.  Corwine 
Meigs  V.  Dexter 
Meles,  Martin  v. 
Merrill,  Harvey  v. 
"     V.  Peaslee 
"      ,  Tanner  v. 
Mersey  Docks,  Eckersley  v. 
Mersey  Steel  &  Iron  Co.  v.  Naylor 
Meyer  v.  Hartman 
Middlesex  Railroad  Co.,  White  v. 


Pasre 


681 

415 

ii. 

462 

.  16 

ii. 

357 

r« 

108 

Co 

, 

ii. 
i. 
i. 
i. 

648 
541 
274 
367 
i.  29 

509 

269 

435 

3C4 

301 

ii. 

550 

ii. 

192 

ii. 

256 

ii. 

577 

i. 

5;X) 

ii. 

r)2iS 

ii. 

145 

i 

.  45 

i. 

IbO 

i. 

120 

i- 
i. 

418 

ii. 

140 

ii. 

535 

i. 

438 

i.  66 

i. 

468 

i 

521 

ii. 

254 

ii. 

654 

3- 

i. 

501 

i. 

424 

i 

499 

i 

195 

ii 

172 

ii 

473 

i. 

383 

1- 

ii 

365 

ii 

300 

i 

158 

ii 

181 

ii 

483 

i 

378 

i 

195 

ii 

403 

ii 

544 

i 

215 

ii 

471 

ii 

100 

i 

622 

ii 

464 

xn 


TABLE   OF   CASES. 


Page 

Milbourn,  Cowan  v. 

ii.  512 

Miles,  Keith  v. 

i.  257 

"   V.  New  Zealand  Co. 

i.  287 

"    V.  Schmidt 

ii.  409 

Milliinl,  Ci)oke  v. 

i.  600  71. 

Milling,  Johnstone  v. 

ii.  220 

Mills  I'.  Wyman 

i.341 

iVIillward  v.  Littlewood 

ii.  552 

IMiliier,  Allen  v. 

ii.  037 

Mississippi,  &c.  S.  S.  Co.  v. 

Swift     i.  19n. 

Mitchell  V.  Hawley 

ii.  622 

"         V.  Reynolds 

ii.  349 

,  Seward  v. 

i.  267 

Mittenthal  v.  Mascagni 

ii.  473 

Monteith,  Smith  v. 

i.  279 

Moody  V   Insurance  Co. 

i.  728 

Moor,  Phillips  v. 

L  148 

Moore  v.  Kimer 

i.  315 

*'     ,  Ensjg  V. 

ii.  118 

More  V.  Bennett 

ii.  385 

Morgan  v.  Birnie 

i.  688 

"      ,  Harbor  v. 

ii.  610 

Morris,  Waugh  v. 

ii,  551 

Morse,  Nilson  v. 

ii.  259r). 

Morton  v.  Lamb 

ii.  37 

Mount    Holyoke     College 

O'Con- 

nell  V. 

i.  527 

Mowse  V.  Edney 

i.  419 

Musryeridge,  Lee  v. 

i.  820 

Mullen,  Heiter  v. 

ii.  333 

Munroe  ?-■.  Perkins 

i.  224 

Myton,  Sehuler  v. 

1.248 

Norrington  v.  Wright 

ii.  107 

Nugent  V.  Wolfe 

i.  510 

Nunn,  Goodisson  v. 

ii.  33 

Nussey,  Walker  v. 

i.  610 

Nutter,  Winchester  v. 

ii.  413 

Nyulasy  v.  Kowan 

i.  6 

N. 


Nash  V.  Armstrong  i.  306 

Nashua,  &c.  K.  H.  Co.,  Boston,  &c. 

R.  R.  Co.  V.  ii.  642 

National  Bank  v.  Grand  Lodge  i.  388 

National    Bank    and    Loan    Co.    v. 

Petrie  ii.  565 

National  Machine  Co.  v.  Standard 

Machinery  Co.  ii.  78 

Navlor,  Mersey  Steel  &  Iron  Co.  v.   ii.  100 
Neil,  Schnell  v.  i.  170 

Nelson,  Maloney  v.  ii.  535 

New  England  Ins.  Co.,  Bowditch  y.   ii.  501 
Newington  v.  Levy  ii.  609  7i. 

New  ( )rleans  Association  v.  Magnier  i.  418 

i.  287 

ii.  241 

i.  401 

ii.  826 

i.  413 

ii.  2 

ii.  450 

ii.  259(1. 

i.  367 

i.  713 

i.  659 

ii.  543 

i.  701 


New  Zealand  Co.,  Miles  v 
Newton,  Daniels  v. 

"       ,  James  r. 
New  York  o.  Globe  Ins.  Co 
Nichols,  Arnold  v. 

'•     V.  Raynbred 
Nickelson  r.  Wilson 
Nilson  V.  Morse 
Nissley,  Lorah  v. 
Noble,  Doll  V. 

"     V.  Ward 
Noice  V.  Brown 
Nolan  V.  Whitney 
Nordenfeldt  v.  Maxim  Nordenfeldt 

Co.  ii.  305 


o. 

O'Connell  v.  Mount  Holyoke  Col- 
lege ■  i.  527 
Odell  V.  Webendorfer  i.  587 
Offord  V.  Davies  i-  82 
Ohio  Candle  Co.,  Emery  i^.  ii.  389 
O'Kane,  Hopkins  v.  ii.  402 
Oler,  DiuLdey  v.  ii.  235 
Oliveira,  Wilkinson  v.  i.  164 
Ollive  V.  Booker  ii.  55 
0[)ie,  Peeters  v.  ii.  4 
Osborn  V.  Martha's  Vineyard  R.  R. 

Co.  i.SOl 

Owen,  Biggers  v.  i.  57 

Oxley,  Cooke  v.  i.  2 


Parker,  Baldey  v.  i.  608 
"  V.  Russell  ii.  250 
Parsons  v.  Loucks  i.  599 
"  V.  Phelan  i.  553 
Patch,  Cowley  v.  i.  493 
Payne  v.  Cave  i.  1 
Pead  V.  Trull  ii.  77 
Pearce  v.  Brooks  ii.  499 
Peaslee,  Merrill  v.  ii.  544 
Peck  V.  Uiuted  States  ii.  179 
Peeters  i\  Opie  ii.  4 
Peszg,  Scotson  v.  i.  242 
Pellnian  v.  Hart  i.  4i:\ 
Pennsylvania  R.  R.  Co.,  Jack- 
son V.  ii-  032 
Penson  and  Iligbed's  Case  i.  420 
Pepler,  Taunton  v.  i.  363 
Perkins,  Munroe  v.  i.  224 
Perrine,  Em  ley  v.  i.  441 
Peter  v.  Compton  i.  662 
Petrie,    National    Bank    and    Loan 

Co.  V.  ii.  565 

Phelan,  Parsons  v.  i.  553 

Plielps,  Derby  v.  i.  589 

Philadeli)liia  v.  Reeves  i.  469 
Philadelphia  &  Reading  Co.,  Empire 

Co.  V.  ii.  336 

Phillips  V.  Moor  i.  148 

Pliipps,  Benson  v.  i.  219 

Bigot's  Case  ii.  656 

Pirn,  Laird  v.  ii.  188 

Pixley  V.  Boynton  ii.  411 

Piatt,  Cahen  v.  ii.  123 

Pollard,  Lakeman  v.  ii.  320 

Pool  V.  Boston  i.  255 

Poole,  Dutton  v.  i.  384 

Pope,  Bohanan  v.  i.  411 


TABLE   OF   CASES. 


xni 


Pordage  v.  Cole 

Porter,  Grant  v. 

Pottlitzer  Bros.  Fruit  Co.,  Sanders 

Poussard  v.  Spiers 

Poutre,  Trudeau  v. 

Powel,  Cross  v. 

Presbyterian  Church  v.  Cooper 

Prescott  V.  Jones 

Preston,  Eames  v. 

"     ,  Kingston  v. 
Price  V.  Barker 
Proctor,  Church  v. 

"     ,  Gibbons  v. 
Purseli,  Lavery  v. 

R. 

Raffles  V.  Wichelhaus 
RalH,  Livingston  v. 
liann  v.  Hughes 
Pan,  Durnherr  v. 
Rayburn  v.  Corastock 
Raynbred,  Nichols  v. 
Reeves,  Philadelphia  v. 
Reich,  Paeon  v. 
Rennie,  Hoare  v. 
Renwick,  Jamieson  v. 
Resseter  v.  Waterman 
Reynolds,  Mitchell  v. 
"  ,  Thompson  v. 
"  ,  Withers  v. 
Richards  v.  Heather 
Riches  v.  Briggs 
Richmond  and  Danville  Co.,  Wood- 
stock Iron  Co.  V.  ii.  487 
Riggs  V.  Bullingham  i.  311 
Rindge  v.  Kimball  i.  346 
Ripley  v.  M'Clure  ii.  192 
Roberts  v.  Security  Co.  i.  375 
Robertson  v.  Davenport  ii.  169 
Robinson,  Cusack  v.  i.  606 
"  V.  Hawkins  ii.  650 
Rochester    Lantern    Co.    v.    Stiles 

Press  Co.  i.  460  n. 

Roe  t'.  Haugh  ii.  587 

Rogers,  Fox  v.  ii.  570 

"      ,  Johnston  v.  i.  19 

Rosa,  Spalding  v.  ii.  314 

Roscorla  v.  Thomas  i.  313 

Rosenbaum,   United    States   Credit 

Co.  V.  ii.  556 

Row  V.  Dawrson  i.  424 

Rowan,  Nyulasy  v.  i.  5 

Rowell,  Henry  v.  ii.  253  n. 

Rowlands,  Cope  v.  ii.  548 

Royal  Insurance  Co.  v.  Beatty  i.  140 

Rugg  V.  Moore  ii.  118 

Runnamaker  v.  Cordray  ii.  663 

Russell,  Parker  v.  ii.  250 

Ryan,  Dunphy  v.  i.  549 


ii.  2 

i 

323 

V. 

i.  14 

ii.  65 

ii 

587 

ii 

651 

i 

191 

i 

145 

i 

372 

ii.  22 

i 

496 

ii 

507 

i.  74 

i. 

537 

1.62 

ii. 

462 

i. 

161 

i 

406 

ii 

260 

ii.  2 

i. 

469 

ii. 

664 

ii.  84 

i. 

266 

i. 

514 

ii. 

.349 

ii. 

425 

i 

.43 

i. 

471 

i. 

157 

Sadler,  Flower  v. 
St.  Albans  v.  Shore 


U.  448 
ii.  24 


Page 
Salmon  Falls  Mfg.  Co.  v.  Goddard  i.  612 
Sanders  v.  Pottlitzer  Bros.  Fruit  Co.  i.  14 

Satanita,  The  i.  24 

Saunders  v.  Saunders  i.  373 

Sawdon,  Turner  v.  ii.  184 

Schmidt,  Miles  v.  ii.  469 

Schnell  v.  Nell  i.  170 

Scliool  District  v.  Livers  i.  415 

Schuler  r.  Myton  i.  248 

Schweider  v.  Lang  i.  310 

Scotson  V.  Pegg  i.  242 

Scott  V.  Avery  ii.  455 

"      V.  Brown  ii.  515 

Sears  v.  Eastern  Railroad  Co.  i.  25 

Security  Co.,  Roberts  v.  i.  375 

Seignoret,  Snales  v.  ii.  182 
Semmes  v.  Hartford  Insurance  Co.  i.  725 

Settree,  Atkinson  v.  i.  270 

Seward  v.  Mitchell       ■  i.  267 

Seymour  v.  Armstrong  i.  23 

Sliadforth  v.  Higgin  i.  687 

Shadwell  v.  Sliadwell  i.  237 

Shales  r.  Seignoret  ii.  182 

Sharington  v.  Strotton  i.  379 

Shattuck,  Chapman  v.  i.  447 

Shaw,  Devecmon  v.  i.  188 

Shee,  Littlefield  v.  i.  330 

Sheffield,  Strong  v.  i.  299 

Sheldon,  State  Trust  Co.  v.  i.  355 

Shore,  St.  Albans  v.  ii.  24 

Shuey  v.  United  States  i.  54 

Sidenham  v.  Worlington  i.  158 

Sidvvay,  Hamer  v.  i.  261 

Simons,  Barnard  v.  i.  268 

Simpson  u.  Crippin  ii.  93 

Slade,  Bagge  v.  i.  236 

Slade's  Case  i.  158 

Slater  v.  .Jones  ii.  607 
Small  V.  The  C.  R.  I.  &  P.  R.  Co.     ii.  436 

Smith,  Fink  v.  i.  258 

"     ,  Gibbs  V.  ii.  530 

"     ,  Gray  v.  ii.  279 

"       V.  Monteith  i.  279 

"    ,  Ziehen  v.  ii.  163 

Smith  and  Smith's  Case  i.  153 

Spalding  v.  Rosa  ii.  314 

Spaulding,  Hale  v.  i.  495 

Spencer  v.  Harding  i.  8 

Spiers,  Poussard  v.  ii  65 

Sperry,  Way  v.  i.  352 
Standard   Machinery  Co.,  National 

Machine  Co.  v.  ii.  78 

State  Trust  Co.  v.  Sheldon  i.  355 

Steeds  v.  Steeds  ii.  625 

Stees  V.  Leonard  ii.  301 

Stern,  Williams  v.  ii.  582 

Stewart  v.  Thayer  ii.  540 

Stevenson  v.  McLean  i.  45 
Stiles  Press  Co.,  Rochester  Lantern 

Co.  V.  i.  460  n. 

Stokes,  Langden  v.  ii.  573 

Stone  V.  Bale  i.  363 

Strangborough  v.  Warner  i.  166 

Strong  V.  Sheffield  i.  299 

Strotton,  Sharington  v.  i.  379 


XIV 


TABLE    OF   CASES. 


Sturlyn  v.  Albany 

Suitoii  V.  Grey 

Sweeting,  Bailey  v. 

Swift,  Mississippi,  &c.  S.  S.  Co.  v. 


T. 


Page 
i.  165 
1.524 
i.  632 
i.  19«. 


Talbot,  Beckwith  v. 

i.  640 

Tanner  r.  Merrill 

i.  215 

Taunton  v.  Pepler 

i.  363 

Taylor,  Darland  v. 

ii.  655 

"       Hilary 
Texas  &  Pacific  Ry.  Co., 

ii.  675 
Warner  v.    i.  56o 

'i'liacker  v.  Hardy 
Thayer,  Stewart  v. 

ii.  397 
ii.  540 

Thinne,  Bosden  v. 

i.  311 

Thomas  v.  Cadwallader 

ii.  18 

"        V.  Hartshorne 

ii.  344 

"       ,  Roscorla  i'. 

i.  313 

"        V.  Thomas 

i.  177 

Tliompsoii  V.  Gillespy 
"          V.  Reynolds 

ii.  68 
ii.  425 

Thorpe  v.  Tliorpe 
Thurnell  v.  Balbirnie 

ii.  7 
i.  703 

Tillock  I'.  Webb 

ii.  538 

Tinn  v.  Hoffman 

i.  113 

Topp,  Ellen  v. 

ii.  47 

Traver  v.  Halstead 

ii.  273 

"         V.  

i.  185 

Trist  V.  Child 

ii.  477 

Trudeaii  v.  Poutre 

ii.  587 

Tnienian  r.  Teuton 

i.  320 

Tniil,  Pead  v. 

ii.  77 

TuUis  r.  Jacson 

i.  697 

Turner  v.  Goldsmith 

ii.  323 

"       V.  Sawdon 

ii.  184 

"      ,  Watson  V. 

i.  318 

Tweddle  v.  Atkinson 

i.  385 

u. 


il  322 

ii.  179 

1.64 


Union  School  District,  Dewey  v. 
United  States  v.  Peck 

"  ,  Shuey  v. 

United    States    Credit   Co.,    Rosen- 
baum  V.  ii.  556 


V. 


Van  Buren,  Davis  v.  i.  500 

Van  Tienhoven,  Bvrne  i'.  i.  41 
Victor  G.  Bloede  Co.,  Walter  v.         i.  668 

Vitty  V.  Eley  i.  74 

Vouillon,  Gibbons  v.  ii.  691 

Vyse,  Batterybury  v.  i.  694 

"      V.  Wakefield  ii.  131 


W. 


Wagner,  Globe  Mutual  Life  Insur- 
:nice  Assoc,  v.  i.  685 


Page 

Wainwrifibt   Brewing  Co.,  Lingen- 

felder  v.  i.  228 

Wakefield,  Vyse  i-.  ii.  131 

Walker,  American  Publishing  Co.  v.    i.  58 
"         V.  Nujisey  i.  610 

Wallis,  Binninirton  v.  i.  329 

Walsh,  Hampden  v.  ii.  .390 

Walter  i'.  Victor  G.  Bloede  Co.  i.  668 

Wannemacher,  Lerned  v,  i.  644 

Ward,  March  v.  i.  468 

"     ,  Noble  r.  i.  659 

Warner,  Stranjfborough  v.  i.  156 

"        V.  Texas  &  Pacific  Ry.  Co.    i.  563 
Warren  v.  Hodpe  i.  201 

"        V.  Lynch  i.  364 

Waterman.  Pesseter  v.  i.  614 

Watkinson,  Makin  i;.  ii.  140 

Watson,  Clarke  v.  i.  691 

"       ,  Keightley  v.  i.  483 

"         V.  Turner  i.  318 

Watts,  Cliflbrd  v.  ii.  291 

Waugh  (;.  Morris  ii.  654 

Way  V.  Sjierry  i.'  352 

Weaver,  Hol(;onib  v.  ii.  495 

Webb,  Tillock  v.  ii.  538 

Webendorfer,  Udell  v.  i.  6b7 

Weber  r.  Couch  ii.  585 

Weeks,  Edwards  v.  ii.  573 

Welch  V.  Mandeville  i.  438 

Wells  V.  Alexandre  i.  182 

"      V.  Calnan  ii.  73 

West  V.  Blakeway  ii.  576 

West  Chicago  Street  Ry,  Co.,  Wil- 
liams V.  i.  77 
Western     Union     Telegraph     Co., 

Ayer  v.  i.  69 

Wheat  V.  Cross  i.  130 

Wheeler  i'.  Klaholt  i.  144 

White  V.  Bluett  i.  199 

"       V.  Corlies  i.  134 

"     ,  Long  V.  i.  541 

"      V.  Middlesex  Railroad  Co.      ii.  464 
Whitlock,  Austin  i'.  i.  370 

Whitney,  Nolan  v.  i.  701 

Wichelhaus,  Raffles  v.  i.  62 

Wilkinson  v.  Oliveira  i.  164 

Williams  v.  Bayley  ii.  438 

"         V.  (^arwardine  i.  72 

,  Falck  V.  i.  64 

"         V.  London  Commercial  Ex- 
change Co.  ii.  648 
"         V.  Stern  ii.  682 
"         V.    West    Chicago    Street 

Ry.  Co.  i.  77 

Wilson,  NickelsDn  v.  ii.  450 

Winch  V.  Keeley  i.  426 

Winchester  v.  Nutter  ii.  413 

Witham,- Great  Northern  Ry.  Co.  v. 

i.  136 
Withers  v.  Reynolds  ii.  43 

Wolfe,  Nugent  v.  i.  510 

Wood,  Worsley  v.  i.  677 

Woodstock  Iron  Co.  v.  Richmond  & 

Danville  Co.  ii.  487 

Work  V.  Beach  i.  715 


TABLE    OF    CASES. 


XV 


Worlington,  Si  Jenham  ». 
Worsley  v.  Wood 
Wrunoh,  Hyde  v. 
Wrigiit,  Cook  V. 

"         I,'.  D:innah 

"      ,  Lock  V. 

"      ,  Norrington  v. 
Wyman,  Mills  v. 


Page 
i.  168 
i.  677 

i.  44 
i.  288 
i.  622 

ii.  1*5 
ii.  107 
i.  341 


Y. 

Young,  Jonassolin  v. 
,  Kadisti  V. 

Z. 

Ziegler's  Ex.,  Albert's  Ex.  v. 
Ziehen  v.  Smith 
Zuck  V.  McClure 


Page 

ii.  90 

ii.  265 


ii.  6o'2 

ii.  ma 

ii.  2iJtJ 


CASES  ON  CONTRACTS. 


CHAPTER  I. 

FORMATION  OF  SIMPLE  CONTRACTS. 


SECTION  I. 

MUTUAL  ASSENT. 


A.  —  Offbr. 


PAYNE  V.  CAVE. 
In  the  King's  Bench,  May  2,  1789. 

[Reported  in  3  Term  Reports^  148.] 

This  was  an  action  tried  at  the  Sittings  after  last  term  at  Guildhall, 
before  Lord  Kenyon,  wherein  the  declaration  stated  that  the  plaintiff, 
on  22d  September,  1788,  was  possessed  of  a  certain  worm-tub,  and  a 
pewter  worm  in  the  same,  which  were  then  and  there  about  to  be  sold 
by  public  auction  by  one  S.  M.,  the  agent  of  the  plaintiff  in  that  behalf, 
the  conditions  of  which  sale  were  to  be  the  usual  conditions  of  sale  of 
goods  sold  by  auction,  &c.,  of  all  which  premises  the  defendant  after- 
wards, to  wit,  &c.,  had  notice;  and  thereupon  the  defendant,  in  con- 
sideration that  the  plaintiff,  at  the  special  instance  and  request  of  the 
defendant,  did  then  and  there  undertake  and  promise  to  perform  the 
conditions  of  the  said  sale  to  be  performed  by  the  plaintiff  as  seller, 
&c.,  undertook,  and  then  and  there  promised  the  plaintiff  to  perform 
the  conditions  of  the  sale  to  be  performed  on  the  part  of  the  buyer,  &c. 
And  the  plaintiff  avers  that  the  conditions  of  sale  hereinafter  men- 
tioned are  usual  conditions  of  sale  of  goods  sold  by  auction,  to  wit, 
that  the  highest  bidder  should  be  the  purchaser,  and  should  deposit  five 
shillings  in  the  pound,  and  that  if  the  lot  purchased  were  not  paid  for 
and  taken  away  in  two  days'  time,  it  should  be  put  up  again  and  resold, 
&c.  [stating  all  the  conditions].  It  then  stated  that  the  defendant 
became  the  purchaser  of  the  lot  in  question  for  40?.  and  was  requested 
to  pay  the  usual  deposit,  which  he  refused,  &c.  At  the  trial,  the 
plaintiff's  counsel  opened  the  case  thus :  The  goods  were  put  up  in  one 

VOL.    I.  —  I 


2  COOKIE   V.    OXLET.  [CHAP.   I. 

lot  at  an  auction  ;  there  were  several  bidders,  of  whom  the  defendant 
was  the  hist,  who  bid  401.  ;  the  auctioneer  dwelt  on  the  bidding,  on 
which  the  defendant  said,  "  Why  do  you  dwell?  you  Avill  not  get  more." 
The  auctioneer  said  that  he  was  informed  the  worm  weighed  at  least 
1300  cwt.,  and  was  worth  more  than  40/.  ;  the  defendant  then  asked 
him  whether  he  would  warrant  it  to  weigh  so  much,  and  receiving  an 
answer  in  the  negative,  he  then  declared  that  he  would  not  take  it, 
and  refused  to  pay  for  it.  It  was  resokl  on  a  subsequent  day's  sale 
for  301.  to  the  defendant,  against  whom  the  action  was  brought  for  the 
difference.  Lord  Kenj'on,  being  of  opinion,  on  this  statement  of  the 
case,  that  the  defendant  was  at  liberty  to  withdraw  his  bidding  any 
time  before  the  hammer  was  knocked  down,  nonsuited  the  plaintiff. 

Walton  now  moved  to  set  aside  the  nonsuit,  on  the  ground  that  the 
bidder  was  bound  by  the  conditions  of  the  sale  to  abide  by  his  bidding, 
and  could  not  retract.  By  the  act  of  bidding  he  acceded  to  those  con- 
ditions, one  of  which  was,  that  the  highest  bidder  should  be  the  buyer. 
The  hammer  is  suspended,  not  for  the  benefit  of  the  bidder,  or  to  give 
him  an  opportunity  of  repenting,  but  for  the  benefit  of  the  seller ;  in 
the  meantime,  the  person  who  bid  last  is  a  conditional  purchaser,  if 
nobody  bids  more.  Otherwise,  it  is  in  the  power  of  any  person  to 
injure  the  vendor,  because  all  the  former  biddings  are  discharged  by  the 
last;  and,  as  it  happened  in  this  very  instance,  the  goods  may  thereby 
ultimately  be  sold  for  less  than  the  person  who  was  last  outbid  would 
have  given  for  them.  The  case  of  Simon  v.  Motivos,^  which  was  men- 
tioned at  the  trial,  does  not  apply.  That  turned  on  the  Statute  of 
Frauds. 

The  Court  thought  the  nonsuit  very  proper.  The  auctioneer  is  the 
agent  of  the  vendor,  and  the  assent  of  both  parties  is  necessary  to  make_ 
the  contract  binding ;  that  is  signified  on  the  part  of  the  seller  by 
knocking  down  the  hammer,  which  was  not  done  here  till  the  defendant 
had  retracted.  An  auction  is  not  unaptly  called  locus  pceiiitenticB. 
Every  bidding  is  nothing  more  than  an  offer  on  one  side,  which  is  not 
i'binding  on  either  side  till  it  is  assented  to.  But  according  to  what  is 
now  contended  for,  one  party  would  be  bound  by  the  offer,  and  the  other 
not,  which  can  never  be  allowed.  Rule  refused? 


COOKE  V.  OXLEY. 
In  the  King's  Bench,  May  14,  1790. 

[Reported  in  3  Term  Reports,  653.] 

This  was  an  action  upon  the  case ;  and  the  third  count  in  the  decla- 
ration, upon  which  the  verdict  was  taken,  stated  that  on,  &c,,  a  certain 

1  3  Burr,  1921. 

2  Sale  of  Goods  Act,  §  58  (2)  ;  Grotenkemper  v.  Achtermyer,  11  Bush.  222;  Head 
V.  Clark,  88  Ky.  362,  364  ;  Fisher  v.  Seltzer,  23  Pa.  308,  ace.  It  is  so  provided  also 
in  the  German  Biirgerliches  Gesetzbuck,  §  156. 


SECT.   I.]  COOKE   V.    OXLEY.  3 

discourse  was  had,  &c.,  concerning  the  buying  of  two  hundred  and 
sixt3--six  hogsheads  of  tobacco  ;  and  on  that  discourse  the  defendant 
proposed  to  the  plaintiff  that  the  former  should  sell  and  deliver  to  the 
latter  the  said  two  hundred  and  sixt3--six  hogsheads  [at  a  certain  price]  ; 
whereupon  the  plaintiff  desired  the  defendant  to  give  him  (the  plaintiff) 
time  to  agree  to  or  dissent  from  the  proposal  till  the  hour  of  four  in  the 
afternoon  of  that  day,  to  which  the  defendant  agreed;  and  thereupon 
the  defendant  proposed  to  the  plaintiff  to  sell  and  deliver  the  same  upon 
the  terms  aforesaid,  if  the  2yl(^it(^t iff  loould  agree  to  purchase  them  upon 
the  terms  aforesaid^  atid  would  give  notice  thereof  to  the  defendant  be- 
fore the  hour  of  four  in  the  afternoon  of  that  dag  ;  the  plaintiff  averred 
that  he  did  agree  to  purchase  the  same  upon  the  terms  aforesaid,  and 
did  give  notice  thereof  to  the  defendant  before  the  hour  of  fouFln  the 
afternoon  of  that  day  ;  he  also  averred  that  he  requested  the  defendant 
to  deliver  to  him  the  said  hogsheads,  and  offered  to  pay  to  the  defend- 
ant the  said  price  for  the  same,  j'et  that  the  defendant  did  not,  &c. 

A  rule  having  been  obtained  to  show  cause  why  the  judgment  should 
not  be  arrested,  on  the  ground  that  there  was  no  consideration  for  the 
defendant's  promise. 

JEJrskine  and  Wood  now  showed  cause.  This  was  a  bargain  and  sale 
on  condition  ;  and  though  the  plaintiff  might  have  rescinded  the  con- 
tract before  four  o'clock,  3'et,  not  having  done  so,  the  condition  was 
complied  with,  and  both  parties  were  bound  by  the  agreement.  The 
declaration  considered  this  as  a  complete  bargain  and  sale  ;  for  the 
breach  of  the  agreement  is  for  not  delivering  the  tobacco.,  and  not  for 
not  selling  it. 

Lord  Kenton,  Ch.  J.  (stopping  Bearcroft,  who  was  to  have  argued 
in  support  of  the  rule)  :  Nothing  can  be  clearer  than  that,  at  the  time 
of  entering  into  this  contract  the  engagement  was  all  on  one  side  ;  the 
other  party  was  not  bound  ;  it  was  therefore  nudum  pactum. 

BuLLER,  J.  It  is  impossible  to  support  this  declaration  in  any  point 
of  view.  In  order  to  sustain  a  promise,  there  must  be  either  a  damage 
to  the  plaintiff,  or  an  advantage  to  the  defendant :  but  here  was  neither 
when  the  contract  was  first  made.  Then,  as  to  the  subsequent  time, 
the  promise  can  only  be  supported  on  the  ground  of  a  new  contract 
made  at  four  o'clock ;  but  there  is  no  pretence  for  that.  It  has  been 
argued  that  this  must  be  taken  to  be  a  complete  sale  from  the  time 
when  the  condition  was  complied  with ;  but  it  was  not  complied  with, 
for  it  is  not  stated  that  the  defendant  did  agree  at  four  o'clock  to  the 
terms  of  the  sale ;  or  even  that  the  goods  were  kept  till  that  time. 

Grose,  J.  The  agreement  was  not  binding  on  the  plaintiff  before 
four  o'clock ;  and  it  is  not  stated  that  the  parties  came  to  any  subse- 
quent agreement ;  there  is,  therefore,  no  consideration  for  the  promise. 

Hule  absolute.^ 

1  This  judgment  was  aflSrmed  in  the  Exchequer  Chamber  ;  M.  32  G.  3.  Head  v. 
Diggon,  3  Man.  &  Bv.  97,  ace.     See  also  Routledge  i;.  Grant,  4  Bing.  653. 


4  ADAMS   V.   LINDSELL.  [CHAP.  I. 

ADAMS   AND   Others   v.   LINDSELL   and   Another. 
In  the  King's  Bench,  June  5,  1818. 

[Reported  in  1  Barnewall  ^'  Alderson,  681.] 

Action  for  non-delivery  of  wool  according  to  agreement.  At  the 
trial  at  the  last  Lent  Assizes  for  the  county  of  Worcester,  before 
BcTRRODGH,  J.,  it  appeared  that  the  defendants,  who  were  dealers  in 
wool  at  St.  Ives,  in  the  county  of  Huntingdon,  had,  on  Tuesday,  the 
2d  of  September,  1817,  written  the  following  letter  to  the  plaintiffs, 
who  were  woollen  manufacturers  residing  in  Bromsgrove,  Worcester- 
shire: "We  now  offer  you  eight  hundred  tods  of  wether  fleeces,  of 
a  good  fair  quality  of  our  country  wool,  at  35s.  6cZ.  per  tod,  to  be 
delivered  at  Leicester,  and  to  be  paid  for  by  two  months'  bill  in  two 
months,  and  to  be  weighed  up  by  your  agent  within  fourteen  days, 
receiving  your  answer  in  course  of  j^ost." 

This  letter  was  misdirected  by  the  defendants  to  Bromsgrove, 
Leicestershire^  in  consequence  of  which  it  was  not  received  by  the 
plaintiffs  in  Worcestershire  till  7  p.  m.  on  Friday,  September  5th. 
On  that  evening  the  plaintiffs  wrote  an  answer,  agreeing  to  accept 
the  wool  on  the  terms  proposed.  The  course  of  the  post  between  St. 
Ives  and  Bromsgrove  is  through  London,  and  consequently  this  an- 
swer was  not  received  by  the  defendants  till  Tuesday,  September  9th. 
On  the  Monday,  September  8th,  the  defendants,  not  having,  as  they 
expected,  received  an  answer  on  Sunday,  September  7th  (which,  in 
case  their  letter  had  not  been  misdirected,  would  have  been  in  the 
usual  course  of  the  post),  sold  the  wool  in  question  to  another  person. 
Under  these  circumstances,  the  learned  Judge  held  that,  the  delay 
having  been  occasioned  by  the  neglect  of  the  defendants,  the  jury 
must  take  it  that  the  answer  did  come  back  in  due  course  of  post; 
and  that  then  the  defendants  were  liable  for  the  loss  that  had  been 
sustained:  and  the  plaintiffs  accordingly  recovered  a  verdict. 

Jervis  having  in  Easter  Term  obtained  a  rule  nisi  for  a  new  trial, 
on  the  ground  that  there  was  no  binding  contract  between  the 
parties, 

Dauncey^  Puller^  and  Richardson  showed  cause.  They  contended 
that,  at  the  moment  of  the  acceptance  of  the  offer  of  the  defendants 
by  the  plaintiffs,  the  former  became  bound.  And  that  was  on  Friday 
evening,  when  there  had  been  no  change  of  circumstances.  They 
were  then  stopped  by  the  Court,  who  called  upon 

Jervis  and  Campbell  in  support  of  the  rule.  They  relied  on  Payne 
V.  Cave,  and  more  particularly  on  Cooke  v.  Oxley.  In  that  case, 
Oxley,  who  had  proposed  to  sell  goods  to  Cooke,  and  given  him  a 
certain  time,  at  his  request,  to  determine  whether  he  would  buy  them 
or  not,  was  held  not  liable  to  the  performance  of  the  contract,  even 
though  Cooke,  within  the  specified  time,  had  determined  to  buy  them, 


SECT.    I.]  NYULASY  V.   ROWAN.  5 

and  given  Oxley  notice  to  that  effect.  So  here  the  defendants  who 
have  proposed  by  letter  to  sell  this  wool,  are  not  to  be  held  liable, 
even  though  it  be  now  admitted  that  the  answer  did  come  back  in 
due  course  of  post.  Till  the  plaintiffs'  answer  was  actually  re- 
ceived, there  could  be  no  binding  contract  between  the  parties;  and 
before  then  the  defendants  had  retracted  their  offer  by  selling  the 
wool  to  other  persons.     But 

The  Court  said,  that  if  that  were  so,  no  contract  could  ever  be 
completed  by  the  post.  For  if  the  defendants  were  not  bound  by  their 
ofifer  when  accepted  by  the  plaintiffs  till  the  answer  was  received, 
then  the  plaintiffs  ought  not  to  be  bound  till  after  they  had  received 
the  notification  that  the  defendants  had  received  their  answer  and 
assented  to  it.  And  so  it  might  go  on  ad  infinitum.  The  defendants 
must  be  considered  in  law  as  making,  during  every  instant  of  the 
time  their  letter  was  travelling,  the  same  identical  offer  to  the  plain- 
tiffs; and  then  the  contract  is  completed  by  the  acceptance  of  it  by 
the  latter.  Then  as  to  the  delay  in  notifying  the  acceptance,  that 
arises  entirely  from  the  mistake  of  the  defendants,  and  it  therefore 
must  be  taken  as  against  them  that  the  plaintiffs'  answer  was  re- 
ceived in  course  of  post.  Rule  discharged. 


NYULASY  V.    ROWAN. 
Supreme  Court  of  Victoria,  May  7-June  23,  1891. 

[Reported  in  17  Victorian  Law  Reports,  663.] 

HiGiNBOTHAM,  C.  J.  This  is  an  appeal  from  a  judgment  of 
MoLESWORTH,  J.  The  statement  of  claim  contains  three  alternative 
causes  of  action.  The  first  of  these,  for  shares  bargained  and  sold, 
was  abandoned  at  the  hearing.  The  second  was  founded  on  a  verbal 
agreement  alleged  to  have  been  made  by  and  between  the  plaintiff 
and  the  defendant  on  21st  July,  1890,  by  which  it  was  agreed,  in 
consideration,  that  the  plaintiff  would  not  proceed  at  that  time  to  sell 
400  shares,  which  he  held  in  the  Melbourne  Tramway  and  Omnibus 
Company,  at  the  then  market  price,  and  would  not  place  the  shares  at 
that  time  on  the  market  for  sale  at  that  price,  that  the  defendant 
should,  on  being  requested  by  the  plaintiff  so  to  do,  at  anytime  within 
three  months  from  21st  July,  1890,  purchase  from  the  plaintiff  his  said  ! 
400  shares  at  the  price  of  8^.  each.  The  plaintiff  alleged  performance' 
of  this  agreement  on  his  part —  a  request  made  by  him  to  the  defend- 
ant to  purchase  the  shares  on  or  about  21st  August,  1890,  and  a  re- 
fusal by  the  defendant  to  purchase.  The  learned  primary  judge  held 
that  this  agreement  was  made  between  the  parties  on  2l8t  July,  and 
that  it  was  broken  by  the  defendant,  and  he  gave  judgment  for  the 
plaintiff  on  this  claim.  The  third  alternative  cause  of  action  was 
founded  upon  a  verbal  offer  alleged  to  have  been  made  by  the  defend- 


6  l^TUIiASY  V.   KOWAN.  [CHAP.    1. 

ant  to  the  plaintiff  on  or  about  21st  July  to  purchabe  the  plaintiff's 
400  shares  at  the  price  of  8^.  per  share,  such  offer  to  remain  open 
three  months  from  that  date;  acceptance  of  the  offer  by  the  plaintiff 
on  or  about  2 1st  August,  within  the  three  months,  and  while  the  de- 
fendant's offer  was  still  open  and  unretracted,  and  refusal  by  the 
defendant  to  accept  the  shares.  The  learned  judge  found  that  the 
plaintiff  had  established  by  proof  this  claim  as  well  as  the  second, 
and  he  gave  judgment  on  it  for  the  plaintiff. 

The  defendant  now  appeals  against  this  judgment  on  both  grounds, 
'^ith  regard  to  the  spcond  |yroni;;id  of  nlainj  it  hag^een  coat^uded. 
that  there  was  no  agreement  between  the  parties  on  21st  July,  as 
t^^ere  was  no  consideration  for^tlie  promise  which  it  jvas  admitted 
tlje  defendant  gave  on  that  day.  The  plaintiff's  answer  to  this  argu- 
ment IS  that  there  is  evidence  of  a  request  then  made  by  the  defend- 
ant that  the  plaintiff  should  not  immediately  sell  his  shares  or  place 
them  on  the  market,  and  that  such  request,  if  complied  with  by  the 
plaintiff,  was  a  good  consideration  for  the  defendant's  promise. 
Crears  v.  Hunter.^  The  question,  then,  that  is  raised  upon  this 
part  of  the  case  is  whether  there  was  any  evidence  upon  which  the 
judge  might  reasonably  act,  that  the  defendant  did  at  that  time 
really,  and  not  by  way  of  banter  only,^  request  the  plaintiff  not  to 
sell  his  shares  or  place  them  on  the  market.  We  are  of  opinion  that 
there  was  such  evidence.  The  defendant's  answer  to  the  whole  claim 
of  the  plaintiff  was  that,  having  been  asked  by  a  friend  of  the  plain- 
tiff, who  was  anxious  and  distressed  by  the  falling  state  of  the 
market,  to  comfort  the  plaintiff,  he  spoke  to  the  plaintiff  jocularly 
only,  intending  to  comfort  him,  and  that  he  gave  him  an  unreal  and 
false  promise  without  intending  to  perform  it.  The  defendant,  how- 
ever, admits  that  the  plaintiff  did  not  seem  to  take  his  words  of 
comfort  as  a  joke.  Now,  the  judge  has  found  upon  evidence  amply 
sufficient  that  this  defence  is  untrue,  that  the  defendant  spoke  to  the 
plaintiff,  not  in  joke,  but  in  earnest,  and  influenced  by  a  desire  to 
protect  the  stock  of  which  he  was  a  large  holder  himself.  Then, 
as  regards  a  request,  the  plaintiff  swore  that  the  defendant  said  to 
him  on  21st  July:  "Don't  be  foolish  to  sell  now  and  lose  money." 
The  defendant,  in  answer  to  an  interrogatory,  stated  that  he  did  not, 
to  the  best  of  his  knowledge,  information,  or  belief,  say  to  the  plain- 
tiff": "Your  trams  are  all  right;  don't  be  so  foolish  as  to  sell  them 
at  a  loss;"  but  he  admits  that  he  may  have  used  words  to  that  effect. 
Now,  assuming,  as  we  are  bound  to  do,  that  the  defendant  spoke  at 

1  19  Q.  B.  D.  341. 

2  Keller  v.  Holderman,  11  Mich.  248,  was  an  action  on  a  check  given  for  a  silver 
watch.  The  trial  judge  found  "  the  whole  transaction  was  a  frolic  and  banter  —  the 
plaintiff  not  expecting  to  sell,  nor  the  defendant  intending  to  buy  the  watch  at  the 
sum  for  which  the  check  was  drawn,"  but  held  the  defendant  liable.  The  Supreme 
Court  reversed  this  judgment  on  the  ground  that  "no  contract  was  ever  made  by  the 
parties."  McClurg  v.  Terry,  21  N.  J.  Eq.  225 ;  Bruce  v.  Bishop,  43  Vt.  161,  ace.  But 
eee  Armstrong  v.  McGhee,  Add.  (Pa.)  261. 


SECT.   I.]  NYULASY   V,   ROWAN.  7 

thi8  conversation  seriously,  and  that  he  was  using  the  opportunity 
hen  represented  to  him  to  make  in  his  own  interest  and  for  his  own 
advantage  a  bona  fide  offer  to  the  plaintiff,  who  accepted  his  words 
sSsW    what  is  the  meaning  that  should  be  given  to  these  words, 
or  w'Ss'to  the  like  effect  then  uttered  by  the  defendant?     The  judge 
has  found  that  forbearance  by  the  plaintiff  to  sell  his  shares  was  on 
account  of  an  implied,  though  perhaps  not  an  express,  request  by  the 
defendant      I  should  be  inclined  to  say  that  these  words  might  be 
taken   to  convey  an  express   request   by  the   plaintiff   not   to  sell. 
We   are  of   opinion   that   they  are  evidence,    either    express   or  by 
imolication,    of   such   a   request:    that    the   judge   was   JUBtified    in 
on    ud  n  "  that  a  request  was  made  by  the  defendant,  and  that  i 
was  in    oSsequence  o?  such  request  that  the  plaintiff  forebore  to  se 
Ms  shares.     The  iudgment,  therefore,  cannot  be  disturbed  on  this 


o;round. 


With  respect  to  the  third  alternative  ground  o£  act.on  it  has  been 
co^ended  for  the  defendant,  that  >u_;-o  ^.n.,.  he  .ons.derat.on  or 
!  1!"  iTn  J  offer  of  this  Icind,  that  the  plaintiff  did  not  accept  the 
offer  at  re°time-irV;:r^=-ind  that  when  he  did  accept  ,t  the  de- 
fendant had  changed  his  mind;  so  that,  treating  '^^  transacuon  o 
21st  July  as  an  offer  only  and  not  as  a  contract,  the  parties  ne%er 
l«:  aijfe.  -d  no  contract  was  entered  i»'o  ^^^'-^f  ^ -^;;; 

,r-  "    9,„+   Tuiv      In    support  of   this  view,   Looke  v.  uxiey 
Ts^r  Ld  on      T^^effect  and^'the  authority  of  that  case  have  been 
The  subject  of  some  controversy  which  is  still  unsettled.     See  Ben- 
in  „„  Sales  C4th  ed.),  P-  69 1  Pollock  on  Principles  of  Contract 
'(Mb  ed  ),  P      5      ot:    ^Cooke  '..  Cley,'   which   was  decided    on 
ilttn  in  arr;st  of  judgment,  may  be  supported  on  the  ground 
that  the  declaration  did  not  aver  that  the  defendant  actually  left 
the  offer  open  until  the  hour  named,  but  only  that  he  promised  to 
do  so  '    But  if  Cooke  ..  Oxley  is  to  be  supported  upon  this  ground 
^f  ^^adin.   it  would  not  govern  the  present  case,  where  ,t  is  alleged 
?n  toe  statement  of  claim  and  proved  in  evidence,  that  tie_E!aiut.ff 
bv  etter  XtedJhe  offfr  ^Hile  it  was  stiU  open^ad^MSgS^ 
T^Tess  therlfore.  there  is  some  distinction  to  be  dl-awn  between  an 
OS  r  by  lette    or  telegram  and  an  offer  byword  of  mouth    and  we 
fe  not  awL  of  any  reason  or  authority  for  such  a  distinction-,  see 
pe^-  llsH    J.,   in  Stevenson  ..  McLean;'  the  present  case  comes 
^i thru  the  artificial  but  convenient  explanatory  rue  '-^  down  m 
Idams  ,..  Linsdell,'  and  the  offer  of   the  defendan    on  21«t  J"ly. 
unsuTported  by  any  consideration,   must  be  considered  m  law  a, 
having  been  made  by  the  defendant  during  every  mstant  of  the  m- 

l  tZlL  wa,,  not  limited  io  time,  and  the  P-"»P'-°  J'; f '^'J^eSi^a 
the  fifth  J,v  after  it  «»  made,  nothing  .o  the  ''"'r''^^T"t.mTl<^c7i>'. 
of  it  if  it  had  been  revoked,  wa.,  matter  of  defence.      W,l»n  v.  Stump,  llM 

_      258.     See  al,o.  Quick  V.  Wheeler.  78  N.  Y.  300. 

^    /  "SQ.  B.D.351.  'AM,f.t. 


8  SPENCER   V.    HARDING.  [CHAP.   I. 

tervening  time  until  19th  August,  when  a  contract  was  made  be- 
tween the  parties  by  the  plaintiff' s  letter,  accepting  the  offer  and 
tendering  his  shares  to  the  defendant.  The  defendant  has  failed,  in 
our  opinion,  on  this  ground  also  to  show  that  the  judgment  was 
wrong.  The  appeal  will  be  dismissed  with  costs. 


v/ 


SPENCER  AND  Another  v.  HARDING  and  Others. 
In  the  Common  Pleas,  June  29,   1870. 

[Reported  in  Law  Reports,  5  Common  Pleas,  561.] 

The  second  count  of  the  declaration  stated  that  the  defendants  by 
their  agents  issued  to  the  plaintiffs  and  other  persons  engaged  in  the 
wholesale  trade  a  circular  in  the  words  and  figures  following;  that 
is  to  say,  "28  King  Street,  Cheapside,  May  17th,  1869,  We  are 
instructed  to  offer  to  the  wholesale  trade  for  sale  by  tender  the  stock 
in  trade  of  Messrs.  G.  Eilbeck  &  Co.,  of  No.  1  Milk  Street,  amount- 
ing as  per  stock-book  to  2,503Z.  13s.  Id.,  and  which  will  be  sold  at 
a  discount  in  one  lot.  Payment  to  be  made  in  cash.  The  stock 
may  be  viewed  on  the  premises,  No.  1  Milk  Street,  up  to  Thursday, 
the  20th  instant,  on  which  day,  at  12  o'clock  at  noon  precisely,  the 
tenders  will  be  received  and  opened  at  our  oflSces.  Should  you 
tender  and  not  attend  the  sale,  please  address  to  us,  sealed  and  in- 
closed, 'Tender  for  Eilbeck's  stock.'  Stock-books  may  be  had  at 
our  office  on  Tuesday  morning.  Honey,  Humphreys  &  Co."  And 
the  defendants  offered  and  undertook  to  sell  the  said  stock  to  the 
highest  bidder  for  cash,  and  to  receive  and  open  the  tenders  de- 
livered to  them  or  their  agents  in  that  behalf,  according  to  the  true 
intent  and  meaning  of  the  said  circular.  And  the  plaintiffs  there- 
upon sent  to  the  said  agents  of  the  defendants  a  tender  for  the  said 
goods,  in  accordance  with  the  said  circular,  and  also  attended  the 
said  sale  at  the  time  and  place  named  in  the  said  circular.  And 
the  said  tender  of  the  plaintiffs  was  the  highest  tender  received  by 
the  defendants  or  their  agents  in  that  behalf.  And  the  plaintiffs 
were  ready  and  willing  to  pay  for  the  said  goods  according  to  the 
true  intent  and  meaning  of  the  said  circular.  And  all  conditions 
were  performed,  etc.,  to  entitle  the  plaintiffs  to  have  their  said 
tender  accepted  by  the  defendants,  and  to  be  declared  the  pur- 
chasers of  the  said  goods  according  to  the  true  intent  and  meaning 
of  the  said  circular;  yet  the  defendants  refused  to  accept  the  said 
tender  of  the  plaintiffs,  and  refused  to  sell  the  said  goods  to  the  plain- 
tiffs, and  refused  to  open  the  said  tender  or  proceed  with  the  sale 
of  the  said  goods,  in  accordance  with  their  said  offer  and  undertak- 
ing in  that  behalf,  whereby  the  plaintiffs  had  been  deprived  of 
profit,  etc. 


^ 


SECT.    I.]  SPENCER    V.   HARDING.  9 

Demurrer,  on  the  ground  that  the  count  showed  no  promise  to  ac- 
cept the  plaintiffs'  tender  or  sell  them  the  goods.     Joinder. 

Holl,  in  support  of  the  demurrer. 

Morgan  Lloyd,  contra. 

WiLLES,  J.  L  am, of  opinion  that  the  defendants  are  entitled  to 
judgment.  The  action  is  brought  against  persons  who  issued  a  cir- 
cular  offering  a  stock  for  sale  by  tender,  to  be  sold  at  a  discount 
in  one  lot.  The  plaintiffs  sent  in  a  tender  which  turned  out  to  be 
the  highest,  but  which  was  not  accepted.  They  now  insist  that  the 
circular  amounts  to  a  contract  or  promise  to  sell  the  goods  to  the 
highest  bidder, — that  is,  in  this  case,  to  the  person  who  should 
tender  for  them  at  the  smallest  rate  of  discount;  and  reliance  is 
placed  on  the  cases  as  to  rewards  offered  for  the  discovery  of  an 
offender.  In  those  cases,  however,  there  never  was  any  doubt  that 
the  advertisement  amounted  to  a  promise  to  pay  the  money  to  the 
person  who  first  gave  information.  The  difficulty  suggested  was 
that  it  was  a  contract  with  all  the  world.  But  that,  of  course,  was 
soon  overruled.  It  was  an  offer  to  become  liable  to  any  person  who, 
before  the  offer  should  be  retracted,  should  happen  to  be  the  per- 
son to  fulfil  the  contract  of  which  the  advertisement  was  an  offer  or 
tender.  That  is  not  the  sorl  of  difficulty  which  presents  itself  here. 
If  the  circular  had  gone  on  "and  we  undertake  to  sell  to  the  highest 
bidder,"  the  reward  cases  would  have  applied,  and  there  would  have 
been  a  good  conti'act  in  respect  of  the  persons.^  But  the  question 
i.a,  wjipther  there  is  here  any  offer  to  enter  into  a  contract  at  all, 
or  whether  the  circular  amounts  to  anything  more  than  a  mere  proc- 
lamation that  the  defendants  are  ready  to  chaffer  for  the  sale  of  the 
goods,  and  to  receive  offers  for  the  pui'chase  of  them.  In  advertise- 
ments for  tenders  for  buildings  it  is  not  usual  to  say  that  the  con- 
tract will  be  given  to  the  lowest  bidder,  and  it  is  not  always  that  the 
contract  is  made  with  the  lowest  bidder.  Here  there  is  a  total  ab- 
sence of  any  words  to  intimate  that  the  highest  bidder  is  to  be  the 
purchaser.  It  is  a  mere  attempt  to  ascertain  whether  an  offer  can 
be  obtained  within  such  a  margin  as  the  sellers  are  willing  to  adopt. 

Keating  and  Montague  Smith,  JJ.,  concurred. 

Judgment  for  the  defendants.^ 

1  See  Warlow  v.  Harrison,  1  E.  &  E.  295  ;  Mainprice  v.  Westley,  6  B.  &  S.  420 ; 
Harris  ?;.  Nickerson,  L.  R.  8  Q.  B.  286  :  South  Hetton  Coal  Co.  v.  Haswell,  [1898]  1  Ch. 
465;  Johnston  v.  Boyes,  [1899]  2  Ch.  73  ;  Tillman  v.  Dunman,  114  Ga.  406;  McXeil 
V.  Boston  Chamber  of  Commerce,  154  Mass.  277  ;  57  L.  R.  A.  note. 

2  Iji  Rooke  V.  Dawson,  [1895]  1  ch.  480,  the  announcement  of  an  examination  for  a 
scholarship  was  held  not  to  amount  lu  fill  uiier  to  award  the  scholarship  to  such  appli- 
cant as  should  fulfil  the  requirements  of  the  trust  deed  under  which  the  scholarship 
fund  waa  held.     Compare  -^eidermevp.r  v.  Univ.  of  Missouri.  61  Mo.  App.  654. 


10  BRIDGE   WOKKS   V.   COUNTY   OF   BRISTOL.        [CHAP.  I. 


EDGE  MOOR  BRIDGE  WORKS  v.  COUNTY  OF  BRISTOL. 
Supreme  Judicial  Court  of  Massachusetts,  March  3-28,  1898. 

[Reported  in  170  Massachusetts,  528.] 

Contract.  The  declaration  alleged  that,  under  the  provisions  of 
St.  1893,  c.  368,  and  of  various  acts  in  amendment  thereof  and  in 
addition  thereto,  the  county  commissioners  of  Bristol  were  authorized 
and  directed  to  widen  the  bridge  between  New  Bedford  and  Fairhaven 
■within  the  county  of  Bristol,  and  were  authorized  and  empowered  to 
reconstruct  the  existing  bridge,  or  to  construct  a  new  bridge  ;  and  it 
was  further  provided  that  the  expense  of  the  construction  should  in 
the  first  instance  be  borne  b^'  the  count\' ;  and  that,  acting  under  the 
authorit}'  so  conferred,  the  commissioners  inserted  in  several  news- 
papers published  in  the  count}'  and  elsewhere  two  advertisements,  the 
material  provisions  of  which  were  as  follows  :  — 

"  Sealed  proposals  addressed  to  the  County  Commissioners  of  Bris- 
tol County,  and  indorsed  '  Proposals  for  building  the  substructure  of 
the  middle  portion  of  the  New  Bedford  and  Fairhaven  Bridge,'  and 
'  Proposals  for  building  the  superstructure  of  the  middle  portion  of  the 
New  Bedford  and  Fairhaven  Bridge,'  will  be  received  b}'  the  County 
Commissioners  of  Bristol  Count}-  at  New  Bedford,  Mass.,  until  2.30 
o'clock  P.M.  of  the  2d  day  of  August,  1897,  and  at  that  time  will  be 
publicl}'  opened  and  read  at  the  court  house.  New  Bedford. 

"  Each  bidder  will  be  required  to  present  a  certified  check  upon  a 
National  Bank  for  $5,000,  payable  to  Treasurer  of  Bristol  County, 
twenty-four  (24)  hours  before  the  date  and  hour  above  fixed  for  open- 
ing the  proposals,  said  check  to  be  returned  to  the  bidder  unless  he 
fails  to  execute  the  contract  should  it  be  awarded  to  him. 

"  An  agreement  for  five  thousand  dollars  ($5,000)  liquidated  dam- 
ages will  be  required  for  the  faithful  performance  of  the  contract,  with 
sureties  to  be  residents  of  or  qualified  to  do  business  in  the  State  of 
Massachusetts  and  satisfactory  to  said  county  commissioners. 

"  The  person  or  persons  to  whom  the  contract  ma}-  be  awarded  will 
be  required  to  appear  at  the  court  house,  New  Bedford,  with  the  agree- 
ment and  sureties  offered  by  them,  and  execute  the  contract  within 
six  days  (not  including  Sunday)  from  the  date  of  notification  of  such 
award,  and  the  preparation  and  readiness  for  signature  of  the  contract ; 
and  in  case  of  failure  or  neglect  so  to  do,  he  or  the}'  will  be  considered 
as  having  abandoned  it,  and  the  check  accompanying  the  proposal 
shall  be  forfeited  to  the  County  of  Bristol. 

"  All  bids  must  be  made  upon  the  blank  forms  furnished  by  the  en- 
gineer. Prices  must  be  given  in  writing  and  in  figures  for  each  mate- 
rial or  division  of  the  construction  enumerated,  which  prices  are  to 
include  and  cover  the  furnishings  of  all  the  materials  and  the  perform- 
ance of  all  the  labor  requisite  or  proper  for  the  purpose,  in  the  manner 


SECT.    I.]        BRIDGE   WOKKS   V.   COUNTY   OF   BRISTOL.  11 

set  forth,  described,  and  shown  in  the  specifioations  and  on  the  plans 
for  the  work  and  in  the  form  of  contract  approved  by  the  counsel  for 
the  commissioners." 

The  declaration  further  alleged  that,  in  accordance  with  the  adver- 
tisements, and  relying  upon  the  terms  and  conditions  thereof,  tlie 
plaintiff  delivered  to  the  commissioners  prior  to  the  time  named  therein 
sealed  proposals^for ^b^Uding  the  substructure  and  superstructure  of 
the  middle  portion  of  the  New  BedfordandFairhaxen  Bridge,  which 
proposals  were  upon  printed  forms  furnished  by  the  engineer  of  the 
commissioners;  that  the  plaintiff  presented  to  the  commissioners  pre- 
viously to  the  day  so  named  two  certified  checks  upon  national  banks 
for  $5,000  each,  in  accordance  with  the  terms  and  provisions  of  the 
advertisements  above  mentioned  ;  that  the  plaintiff  did  ever^-thing 
required  of  it  under  the  terms  of  the  advertiseinelitS  10  entTtle  it  to  the^~ 
award  of  the  contracts  named  therein  ;  that  thereafter,  at  a  meeting  of 
the  commissioners  held  on~Sugusi  IB,  1897,  at  which  all  three  of  the 
commissioners  were  present,  a  vote  was  dul}'  passed  and  entered  upon 
the  records  of  the    commissioners,  the  material   part  of  which  was 

<as  follows:  "Voted,  That  the  cumulative  bid  of  Edge  Moor  Bridge 
Works  is  accepted,  and  that  the  contract  thereon  be  awarded  to  said 
party  " ;  that  a  cop}'  of  the  vote  was  mailed  to  the  plaintiff  by  the 
clerk  of  the  commissioners,  and  received  bj-  it  on  August  15,  1897; 
that  thereafter  upon  the  same  day  the  plaintiff  sent  to  the  commission- 
ers a  letter  accepting  the  award  of  the  contract,  which  was  duly  re- 
ceived by  the  commissioners  on  or  before  August  18,  1897  ;  that  the 
plaintiff  on  that  day,  acting  by  its  president,  appeared  before  the  com- 
missioners and  offered  to  execute  a  contract  in  the  form  annexed  to 
the  proposal  submitted  bv  the  plaintiff,  according  to  the  terms  of  its 
proposal,  and  tendered  at  the  same  time  an  agreement  ^^th  the  re- 
^  quired  amount  of  liquidated  damages  for  the  faithful  performance  of 
the  contract  with  a  corporation  qualified  to  do  businsss  in  the  State  ol~ 
Massachusetts  as  surety  ;  that  the  plaintiff  was  on  August  18,  and  ever 
since  had  been,  ready  and  willing  and  able  to  execute  the  contract  re- 
quired by  the  terms  of  its  proposal  and  the  acceptance  thereof  by  the 
commissioners,  and  to  furnish  an  agreement  with  the  required  amount 
of  liquidated  damages  for  the  faithful  performance  of  the  contract  with 
a  surety  or  sureties  qualified  to  do  business  in  the  State  of  Massachu- 
setts, and  satisfactory  to  the  commissioners  ;  but  the  commissioners 
refused  to  execute  the  contract  required  by  the  award,  and  the  plaintiff 
had  suffered  great  loss. 

The  defendant  demurred  to  the  declaration,  assigning  various  grounds 
of  demurrer.  In  the  Superior  Court,  the  demurrer  was  sustained,  and 
judgment  ordered  for  the  defendant ;  and  the  plaintiff  appealed  to  this 
court. 

0.  Prescott,  Jr.,  for  the  plaintiff. 

T.  M.  Stetson,  for  the  defendant. 

Allen,  J.     The  ground  of  action  relied  on  by  the  plaintiff  corpora- 


12  BRIDGE   WORKS   V.   COUNTY   OF  BRISTOL.      [CHAP.   I. 

tion  is,  not  that  the  count}'  commissioners  actually  entered  into  a  con- 
tract with  it,  under  which  it  was  to  do  the  work,  but  that  they  agreed 
to  enter  into  such  a  contract,  and  afterwards  refused  to  do  so.  To 
support  this  view,  th^  plaintiff  relies  on  the  vote  of  the  county  commis- 
sioners accepting  its  bid  and  awarding  the  contract.  We  have,  there- 
fore, to  consider  whether,  in  view  of  the  circumstances,  the  vote  bears 
that  construction. 

The  vote  is  to  be  construed  with  reference  to  the  advertisements 
under  which  the  proposals  of  the  plaintiff  were  submitted.  The  con- 
tract mentioned  in  the  vote  is  the  same  contract  mentioned  in  the 
advertisements,  namel}',  the  contract  which  was  to  be  executed  within 
six  days  from  the  date  of  notification  of  the  award,  and  of  the  prepara- 
tion and  readiness  for  signature  of  the  contract,  .^formal  written  con- 
tract, according  to  the  form  submitted  to  the  bidders,  was  expressly 
provided  for.  After  the  award,  the  parties  were  to  meet  and  execute 
such  a  contract.  Where  proposals  and  an  award  made  thereon  look  to 
^il£_Jj^ure  execution  of  the  contract,  s^ch  award  is  not  neoessaxilj  a 
contract  of  any  kind,  nor  an  agreement  to  enter  into  a  contract  based 
upon  the  proposals  ;  it  is  at  most  a  matter  to  be  determined  whether 
such  an  agreement  exists,  upon  a  consideration  of  the  terms  and  pur- 
pose of  the  award,  construed  in  the  light  of  the  existing  circumstances. 
In  Lyman  v.  Robinson,  14  Allen,  242,  where  it  was  sought  to  estab- 
lish a  contract  from  letters,  it  was  said  :  "  A  valid  contract  may  doubt- 
less be  made  by  correspondence,  but  care  should  always  be  taken  not 
to  construe  as  an  agreement  letters  which  the  parties  intended^only  as 
prt^liininf^ry  npffotintion.  The  question  in  such  cases  always  is,jDid. 
they  mean  to  contract  by  their  correspondence,  or  were  they  only  set- 
tling the  terms  of  an  agreement  into  which  the\'  proposed  to  enter  af^pr 
all  itsj^nvf.ip.nlnrs  wprp;_adjusted,  which  was  then  to  be  formally  drawn 
Ujj^and  by  which  alone  thev  designed  to  be  bound  ?  "  See  also  Ridg- 
way  V.  Wharton,  6  H.  L.  Cas.  238,  and  cases  TSere  cited  ;  Winn  v. 
Bull,  7  Ch.  D.  29;  Rossiter  v.  Miller,  3  App.  Cas.  1124;  Starkey  v. 
Minneapolis,  19  Minn.  203  ;  Eads  v.  Carondelet,  42  Mo.  113;  Pollock, 
Con.  41.  Especially  where  the  supposed  contract  is  found  only  in  a 
vote  passed  by  a  board  of  public  officers,  which  looks  to  the  prepara- 
tion and  execution  of  a  formal  contract  in  the  future,  care  must  be 
taken  not  to  hold  that  to  be  a  contract  which  was  intended  onl}^  to  sig- 
nify an  intention  to  enter  into  a  contract.  See  Dunham  v.  Boston,  12 
Allen,  375  ;  Water  Commissioners  v.  Brown,  3  Vroom,  504,  510. 

In  the  present  case,  the  county  commissioners  had  advertised  for 
proposals  for  doing  a  public  work,  with  careful  provisions  looking  to 
the  final  execution  of  a  formal  contract  between  themselves  and  the 
bidder  whose  proposals  should  be  accepted.  The  bidders  were  to  be 
bound  to  stand  hy  their  proposals,  under  a  certain  penalty  or  forfeiture. 
But  the  county  was  not  to  be  bound  until  subsequently  it  should  agree 
^^to  be  bound.  The  plaintiff  concedes  that  no  contract  was  made  under 
which  the  work  was  to  be  done,  but  insists  that  tlie  count}'  commission- 


SECT.  I.]         BRIDGE   WORKS   V.    COUNTY   OF   BRISTOL.  13 

ers  did  agree  that  the}'  would  thereafter  enter  into  such  a  contract. 
"We  are  unable  to  put  that  construction  upon  the  vote.  "While  it  is 
possible  for  a  party  to  agree  in  express  terms  to  enter  into  an  execu- 
tory- contract  in  the  future  (Druramond  v.  Crane,  159  Mass.  577,  and 
Pratt  V.  Hudson  River  Railroad,  21  N.  Y.  305),  the  present  case  is  not 
one  of  that  description.  The  vote  was  but  a  step  in  the  negotiation. 
It  showed  an  expectation  andan  intention,  iortne~firnebeing,  to  enter' 
into  a  contract  with  the  plaintiff  upon  the  basis  of  its  proposals.  But 
the  execution^gf^ihejiqntr^ctj^^^^^jijxct  to  be  done  in  t^g_future,  and 
till  that  should  be  done  no  intention  tobeiegariy  bound  is  fairly  to  be 
inferred.  The  vote  meant  merely  to  sa}'  that  the  plaintiff's  proposals 
were  accepted,  subject  to  the  preparation  and  execution  of  a  formal 
contract.  There  is  nothing  to  indicate  an  intention  to  bind  the  countj- 
b}'  a  preliminary  agreement  that  a  formal  contract  should  be  executed 
in  the  future. 

This  is  especially'  apparent  when  the  state  of  the  existing  legislation 
concerning  the  powers  and  duties  of  count}'  commissioners  is  consid- 
ered. By  St.  1897,  c.  137,  §  2,  it  was  provided  that  all  contracts  made 
b}'  count}'  commissioners  for  the  construction  of  public  works,  if  ex- 
ceeding eight  hundred  dollars  in  amount,  shall  be  made  in  writing,  after 
notice  for  proposals  therefor  has  been  published ;  that  all  proposals 
shall  be  publicly  opened  in  the  presence  of  a  majority  of  the  coramis- 
"ioners,  and  a  record  thereof  made  upon  their  record ;  that  all  such 
,ontracts  shall  be  in  writing,  and  recorded  in  a  book  to  be  kept  for  the 
)urpose  with  the  records  of  the  county  ;  and  that  no  contract  made  in 
violation  of  the  provisions  of  this  section  shall  be  valid  against  the 
county,  and  no  payment  thereon  shall  be  made  from  the  county  treas- 
ury. By  St.  1897,  c.  153,  a  greatly  increased  strictness  was  established 
in  respect  to  expenditures  by  counties,  and  the  duties  of  county  com- 
missioners in  respect  thereto  were  defined,  and  their  powers  limited. 
In  these  statutes,  the  purpose  of  the  Legislature  to  prevent  wasteful  or 
unnecessary  county  expenses  is  clearly  manifested,  and  it  is  open  to 
doubt  whether  it  would  now  be  in  the  power  of  county  commissioners 
to  bind  a  county  by  a  preliminary  agreement  to  enter  into  a  future  con- 
tract for  the  construction  of  a  public  work.  This  question,  however, 
need  not  now  be  determined,  because  it  is  quite  obvious  that  the  county 
commissioners  of  Bristol  County  were  seeking  to  conform  carefully  to 
the  spirit  of  the  provisions  of  the  statutes,  and  that  by  their  vote  they 
did  not  intend  to  bind  the  county  by  a  preliminary  agreement,  such  as 
that  upon  which  the  plaintiff  relies. 

Judgment  for  the  defendant  affirmed.^ 

1  See  also  Kingston-upon-HuU  Guardians  v.  Fetch,  10  Ex.  6J0;  "Weitz  v.  Inde- 
pendent  District,  79  la.  423;  Leskie  v.  Haseltine,  155  Pa.  9a 


14  SANDERS   V.   FRUIT   COMPANY.  [CHAP.   1. 


ARCHIE   D.    SANDERS  et  al.,  Appellants,  v.  POTTLITZER 
BROS.   FRUIT  COMPANY,  Respondent. 

New  York  Court  of  Appkals,  December  7-18,  1894. 
[Reported  in  144  New  York,  209.] 

O'Brien,  J.  The  plaintiffs  in  this  action  sought  to  recover 
damages  for  the  breach  of  a  contract  for  the  sale  and  delivery  of  a 
quantity  of  apples.  The  complaint  was  dismissed  by  the  referee 
and  his  judgment  was  affirmed  upon  appeal.  The  only  question  to 
be  considered  is  whether  the  contract  stated  in  the  complaint,  as  the 
basis  for  damages,  was  ever  in  fact  made  so  as  to  become  bind- 
ing upon  the  parties.  On  the  28th  of  October,  1891,  the  plaintiffs 
submitted  to  the  defendant  the  following  proposition  in  writing: 

"  Buffalo,  N.  Y.,  Oct.  28,  1891. 
"  Messrs.  Pottlitzer  Bros.  Frdit  Co.,  Lafayette,  Ind.: 

"  Gentlemen,  —  We  offer  you  ten  carloads  of  apples  to  be  from  175  to  200 
barrels  per  car,  put  up  in  good  order,  from  stock  inspected  by  your  Mr.  Leo 
Pottlitzer  at  Nunda  and  Silver  Springs.  The  apples  not  to  exceed  one- half 
green  fruit,  balance  red  fruit,  to  be  shipped  as  follows  :  — 

"  First  oar  between  1st  and  15th  December,  1891. 

"  Second  car  between  15th  and  30th  December,  1891,  and  one  car  each  ten 
days  after  January  1,  1892,  until  all  are  shipped.  Dates  above  specified  to  be 
considered  as  approximate  a  few  days  either  way,  at  the  price  of  $2.00  per 
barrel,  free  on  board  cars  at  Silver  Springs  and  Nunda,  in  refrigerator  cars, 
this  proposition  to  be  accepted  not  later  than  the  31st  inst.,  and  you  to  pay  ua 
$500  upon  acceptance  of  the  proposition,  to  be  deducted  from  the  purchase 
price  of  apples  at  the  rate  of  f  100  per  car  on  the  last  five  cars. 

"  Yours  respectfully,        "J.   Sanders  &  Son." 

To  this  proposition  the  defendant  replied  by  telegraph  on  October 

31st  as  follows:  — 

"Lafayette,  Ind.,  31st  October. 
"  J.  Sanders  &  Son  : 

"  We  accept  your  proposition  on  apples,  provided  you  will  change  it  to 

read  'car  every  eight  days  from  January  first,  none  in  December;'  wire 

acceptance.  "Pottlitzer  Bros.  Fruit  Co." 

On  the  same  day  the  plaintiffs  replied  to  this  despatch  to  the  effect 
that  they  could  not  accept  the  modification  proposed,  but  must  in- 
sist upon  the  original  offer.  On  the  same  day  the  defendant  an- 
swered the  plaintiffs'  telegram  as  follows:  — 

"  Can  only  accept  condition  as  stated  in  last  message.  Only  way  we  can 
accept.     Answer  if  accepted.     Mail  contract  and  we  will  then  forward  draft. 

"  Pottlitzer  Bros.  Fruit  Co." 

The  matter  thus  rested  till  November  4,  when  the  plaintiffs  re- 
ceived the  following  letter  from  the  defendant:  — 

"  Lafayette,  Ind.,  November  2,  1891. 

"J.  Sandkus  &  Son,  Stafford,  N.  Y. : 

"  Gknts,  —  We  are  in  receipt  of  your  telegrams,  also  your  favor  of  the  31st 
ult.     While  we  no  doubt  think  we  have  offered  you  a  fair  contract  on  apples. 


SECT.   I.]  SANDERS   V.   FKUIT  COMPANY.  15 

still  the  dictator  of  this  has  learned  on  his  return  home  that  there  are  so 
many  near-by  apples  coming  into  market  that  it  will  affect  the  sale  of  apples 
in  December,  and,  therefore,  we  do  not  think  it  advisable  to  take  the  contract 
unless  you  made  it  read  for  shipment  from  the  1st  of  January.  We  are  very 
sorry  you  cannot  do  this,  but  perhaps  we  will  be  able  to  take  some  fruit  from 
you,  as  we  will  need  it  in  the  spring.  If  you  can  change  the  contract  so  as  to 
read  as  we  wired  you  we  will  accept  it  and  forward  you  draft  in  payment  on 
same,  "Pottlitzer  Fkuit  Co." 

On  receipt  of  this  letter  the  plaintiffs  sent  the  following  message 
to  the  defendant  by  telegraph:  — 

"November  4th. 
"Pottlitzer  Brothers  Fruit  Company,  Lafayette,  Ind. : 

"  Letter  received.     Will  accept  conditions.    If  satisfactory,  answer  and  will 
forward  contract.  "J.   Sanders  &  Son." 

The  defendant  replied  to  this  message  by  telegraph  saying:  "All 
right,  send  contract  as  stated  in  our  message."  The  plaintiffs  did 
prepare  and  send  on  the  contract  precisely  in  the  terms  embraced  in 
the  foregoing  correspondence,  which  was  the  original  proposition 
made  by  the  plaintiffs,  as  modified  by  defendant's  telegram  above 
set  forth,  and  which  was  acceded  to  by  the  plaintiffs.  This  was  not 
satisfactory  to  the  defendant,  and  it  returned  it  to  the  plaintiffs 
with  certain  modifications,  which  were  not  referred  to  in  the  cor- 
respondence. These  modifications  were:  (1)  That  the  fruit  should 
be  well  protected  from  frost  and  well  hayed  ;  (2)  that  if,  in  the  judg 
ment  of  the  plaintiffs,  it  was  necessary  or  prudent  that  the  cars 
should  be  fired  through,  the  plaintiffs  should  furnish  the  stoves  foi 
the  purpose,  and  the  defendant  pay  the  expense  of  the  man  to  be 
employed  in  looking  after  the  fires  to  be  kept  in  the  cars;  (3)  that 
the  plaintiffs  should  line  the  cars  in  which  the  fruit  was  shipped. 
These  conditions  were  more  burdensome  and  rendered  the  contract 
less  profitable  to  the  plaintiffs.  They  were  not  expressed  in  the  cor- 
respondence and  I  think  cannot  be  implied.  They  were  not  assented 
to  by  the  plaintiffs,  and  on  their  declining  to  incorporate  them  in 
the  paper  the  defendant  treated  the  negotiations  as  at  an  end  and 
notified  the  plaintiffs  that  it  had  placed  its  order  with  other  parties. 
There  was  some  further  correspondence,  but  it  is  not  material  to  the 
question  presented  by  the  appeal.  The  writinj^g  and  telegrams  that 
]:^a8§ed-^bet\£efen  the  parties  contain  alLthe  elements  j>fJ^^omp|e! 
contract.  Nothing  was  wanting  in  the  plai rfd it's '  "brig i n al  proposi- 
tion but  the  defendant's  assent  to  it  in  order  to  constitute  a  contract 
binding  upon  both  parties  according  to  its  terms.  This  assent  was 
given  upon  condition  that  a  certain  specified  modification  was  ac- 
cepted. The  plaintiffs  finally  assented  to  the  modification  and  called 
upon  the  defendant  to  signify  its  assent  again  to  the  whole  arrange- 
ment as  thus  modified,  and  it  replied  that  it  was  "all  right,"  which 
must  be  taken  as  conclusive  evidence  that  the  minds  of  the  parties  had 
met  and  agreed  upon  certain  specified  and  distinct  obligations  which 
were  to  be  observed  by  both.  It  is  true,  as  found  by  the  learned 
referee,  that  the  parties  intended  that  the  agreement  should  be  form- 


16  SANDERS   V.    FRUIT   COMPANF.  [CHAP.  I. 

ally  expressed  in  a  single  paper  which,  when  signed,  should  be  the 
evidence  of  what  had  already  been  agreed  upon.  But  neither  party 
was  entitled  to  insert  in  the  paper  any  material  condition  not  referred 
to  in  the  correspondence,  and  if  it  was  inserted  without  the  consent 
of  the  other  party  it  was  unauthorized.  Hence  the  defendant,  by 
insisting  upon  further  material  conditions  not  expressed  or  implied 
in  the  correspondence,  defeated  the  intention  to  reduce  the  agree- 
ment to  the  form  of  a  single  paper  signed  by  both  parties.  The 
plaintiffs  then  had  the  right  to  fall  back  upon  their  written  proposi- 
tion as  originally  made  and  the  subsequent  letters  and  telegrams, 
and  if  they  constituted  a  contract  of  themselves  the  absence  of  the 
formal  agreement  contemplated  was  not  under  the  circumstances 
material.  When  the  parties  intend  that  a  mere  verbal  agreement 
shall  be  finally  reduced  to  writing  as  the  evidence  of  the  terms  of 
the  contract,  it  may  be  true  that  nothing  is  binding  upon  either 
party  until  the  writing  is  executed. 

But  here  the  contract  was  already  in  writing,  and  it  was  none  the 
less  obligatory  upon  both  parties  because  they  intended  that  it  should 
be  put  into  another  form,  especially  when  their  intention  is  made 
impossible  by  the  act  of  one  or  the  other  of  the  parties  by  insisting 
upon  the  insertion  of  conditions  and  provisions  not  contemplated 
or  embraced  in  the  correspondence.  Vassar  v.  Camp,  UN.  Y.  441; 
Brown  v.  Norton,  50  Hun,  248;  Pratt  v.  H.  R.  R.  R.  Co.,  21  N.  Y. 
308.  The  principle  that  governs  in  such  cases  was  clearly  stated 
by  Judge  Selden  in  the  case  last  cited  in  these  words:  *^A  f^ontracL 
t_o  make  and  execute  a  certain  written  agreement,  the  terms  of  which 
are  mutually  understood  and  agreed  upon,  is,  in  all  respe^s,  as 
valid  and__obligatory,  where  no  statutory  objection  interposes,  as 
the  jwritten  contract  itself  would  be,  if  execute_d.  If,  therefore,  it 
should  appear  that  the  minds  of  tT3e~partieshad  met;  that  a  proposi- 
tion for  a  conti-act  had  been  made  by  one  party  and  accepted  by  the 
other;  that  the  terms  of  this  contract  were  in  all  respects  definitely 
understood  and  agreed  upon,  and  that  a  part  of  the  mutual  under- 
standing was,  that  a  written  contract,  embodying  these  terms,  should 
be  drawn  and  executed  by  the  respective  parties,  this  is  an  obliga- 
tory contract,  which  neither  party  is  at  liberty  to  refuse  to  perform." 

In  this  case  it  is  apparent  that  the  minds  of  the  parties  met 
through  the  correspondence  upon  all  the  terms  as  well  as  the  subject- 
matter  of  the  contract,  and  that  the  subsequent  failure  to  reduce  this 
contract  to  the  precise  form  intended,  for  the  reason  stated,  did  not 
affect  the  obligations  of  either  party,  which  had  already  attached, 
and  they  may  now  resort  to  the  primary  evidence  of  their  mutual 
stipulations.  Any  other  rule  would  always  permit  a  party  who  has 
entered  into  a  contract  like  this  through  letters  and  telegraphic  mes- 
sages to  violate  it  whenever  the  understanding  was  that  it  should  be 
reduced  to  another  written  form,  by  simply  suggesting  other  and 
additional  terms  and  conditions.  If  this  were  the  rule  the  contract 
would  never  be  completed  in  cases  where  by  changes  in  the  market 


SECT.   I.]  SANDERS   V.    FKTJIT   COMPANY.  17 

or  other  events  occurring  subsequent  to  the  written  negotiations  it 
became  the  interest  of  either  party  to  adopt  that  course  in  order  to 
escape  or  evade  obligations  incurred  in  the  ordinary  course  of  com- 
mercial business.  A  stipulation  to  reduce  a  valid  written  contract  to 
some  other  form  cannot  be  used  for  the  purpose  of  imposing  upon 
either  party  additional  burdens  or  obligations  or  of  evading  the 
performance  of  those  things  which  the  parties  have  mutually  agreed 
upon  by  such  means  as  made  the  promise  or  assent  binding  in  law. 
There  was  no  proof  of  any  custom  existing  between  the  shippers 
and  consignees  of  such  property  in  regard  to  the  payment  of  the 
expense  of  firing,  lining,  and  haying  the  cars.  If  it  be  said  that 
such  precautions  are  necessary  in  order  to  protect  the  property  while 
in  transit,  that  does  not  help  the  defendant.  The  question  still 
remains,  who  was  to  bear  the  expense?  The  plaintiffs  had  not  agreed 
to  pay  it  any  more  than  they  had  agreed  to  pay  the  freight  or  incur 
the  other  expenses  of  transportation.  The  plaintiffs  sent  a  plain 
proposition  which  the  defendant  accepted  without  any  such  condi- 
tions as  it  subsequently  sought  to  attach  to  it.  That  the  parties 
intended  to  make  and  sign  a  final  paper  does  not  warrant  the  inter- 
ference that  they  also  intended  to  make  another  and  different  agree- 
ment. The  defendant  is  in  no  better  position  than  it  would  be  in 
case  it  had  refused  to  sign  the  final  writing  without  alleging  any 
reasons  whatever.  The  principle,  therefore,  which  is  involved  in  the 
case  is  this,  Can  parties  who  have  exchanged  letters  and  telegrams 
with  a  view  to  an  agreement,  and  have  arrived  at  a  point  where  a 
clear  and  definite  proposition  is  made  on  the  one  side  and  accepted 
on  the  other,  with  an  understanding  that  the  agreement  shall  be 
expressed  in  a  formal  writing,  ever  be  bound  until  that  writing  is 
signed  ?  If  they  are  at  liberty  to  repudiate  the  proposition  or  accept- 
ance, as  the  case  may  be,  at  any  time  before  the  paper  is  signed,  and  as 
the  market  may  go  up  or  down,  then  this  case  is  well  decided.  But  if 
at  the  close  of  the  correspondence  the  plaintiffs  became  bound  by  their 
offer  and  the  defendant  bj'  its  acceptance  of  that  offer,  whether  the 
final  writing  was  signed  or  not,  as  I  think  they  did,  under  such  cir- 
cumstances as  the  record  discloses,  then  the  conclusion  of  the  learned 
referee  was  erroneous.  To  allow  either  party  to  repudiate  the  obliga- 
tions clearly  expressed  in  the  correspondence,  unless  the  other  will 
assent  to  material  conditions,  not  before  referred  to,  or  to  be  implied 
from  the  transaction,  would  be  introducing  an  element  of  great  con- 
fusion and  uncertainty  into  the  law  of  contracts.  If  the  parties  did 
not  become  bound  in  this  case,  they  cannot  be  bound  in  any  case 
until  the  writing  is  executed. 

The  judgment  should  be  reversed  and  a  new  trial  granted,  costs 
to  abide  the  event. 

All  concur,  except  Earl,  Gray,  and  Bartlett,  JJ.,  dissenting. 

Judgment  reversed.^ 

1  In  the  following  cases  it  was  held  that  there  was  a  contract,  though  it  was  agraed 
that  a  written  contract  should  be  subsequently  prepared.    Bonneweli  v.  Jenkins,  8  Ch.  D. 
VOL.    I. — 2 


18  DONNELLY   V.   THE   CURRIE   HARDWARE  CO.       [CHAP.   L 

DANIEL  R.  DONNELLY,  Defendant  in  Error,  v.  THE  CURRIE 
HARDWARE   COMPANY,  Plaintiff  in  Error. 

New  Jersey  Supreme  Court,  February  27 -June  10,  1901. 

[Reported  m  66  New  Jersej/  Law,  388.] 

Dixon,  J.  The  plaintiff,  being  about  to  bid  for  a  contract  to 
build  a  music  pavilion  in  Atlantic  City,  submitted  the  plans  and 
specifications  to  the  defendant  for  an  estimate  as  to  the  price  at 
which  the  latter  would  do  the  metal  work  required,  and  on  March 
31st,  1899,  received  a  letter  from  the  defendant  saying  that  it  would 
do  the  work  for  $2,650.  Accordingly  the  plaintiff  put  in  his  bid 
for  the  construction  of  the  building,  and,  after  the  making  of  some 
changes,  not  affecting  the  metal  work,  the  job  was  awarded  to  him 
and  the  contract  was  signed  on  April  5th,  1899.  'louring  the  next 
morning  the  plaintiff  telephoned  to  the  defendant's  manager  that  he 
had  signed  a  contract  for  the  building,  and  would  be  prepared  to 
sign  a  written  contract  with  the  defendant  at  four  o'clock  that  after- 
noon, to  which  the  manager  answered  "all  right."  Shortly  before 
that  hour  the  plaintiff  telephoned  to  the  manager  that  he  had  not  had 
time  to  prepare  the  contract,  and  would  sign  it  in  the  morning,  to 
which  the  manager  again  replied  "all  right."  The  next  morning  the 
plaintiff  called  on  the  manager,  and  the  latter  informed  the  plaintiff 
that  the  defendant  would  be  unable  to  perform  the  work  in  the  time 
agreed  upon  by  the  plaintiff,  and  had  not  room  to  do  the  work  so 
quickly,  and  refused  to  sign  the  proposed  contract.  Afterwards 
the  plaintiff  was  compelled  to  pay  a  higher  price  for  the  metal  work, 
and  brought  this  suit  for  breach  of  contract.  On  this  state  of  facts, 
shown  by  the  plaintiff's  evidence,  the  defendant  moved  for  a  nonsuit 
and  for  direction  of  a  verdict  in  favor  of  defendant.  These  motions 
being  overruled,  exceptions  were  sealed. 

The  case  is  governed  by  the  rule  established  in  Water  Commis- 
sioners V.  Brown,  3  Vroom,  504,  510,  where  Mr.  Justice  Elmer,  speak- 
ing for  the  Court  of  Errors,  said:  "If  it  appears_tbat.  the,  parties,^^ 
although  they  have  agreed  on  all  the  terms  of  their  contract,  mean_ 
to  have"^{h"em  i^uced  tojvriting^and.,  signed  bjfore^the  bargain  shall 
¥e  considered  as  complete,  neither  party  will  be  bound  until  that  is 
done^  so  long  as  the  contract  remains  without  any  actg  done  under 
it  on  either  side."  The  conversations  over  the  telephone  between 
t"Ee  plaintiff  an"3"'the  defendant's  manager,  as  well  as  the  testimony 
of  the  plaintiff   himself,  make  it  clear  that  a  written  contract  was 

70,  73  ;  Bolton  v.  Lambert,  41  Ch.  D.  295  ;  Bell  v.  Offutt,  10  Bush.  632 ;  Montague  v. 
Weil,  30  La.  Ann.  .50;  Allen  v.  Chouteau,  102  Mo.  309;  Green  v.  Cole  (Mo.),  24 
S.  W.  Rep.  1058;  Wharton  v.  Stoutenburgh,  35  N.  J.  Eq.  266;  Blauey  v.  Hoke,  14 
Ohio  St.  292  ;  Mackey  v.  Mackey's  Adm.,  29  Gratt.  158  ;  Paige  v.  Fullerton  Woolen 
Co.,  27  Vt.  485  ;  Lawrence  v.  Milwaukee,  &c.  Ry.  Co.,  84  Wis.  427  ;  Cohn  v.  Plumev, 
88  Wis.  622. 


SECT.   I.]      JOHNSTON   BROTHERS   V.    ROGERS   BROTHERS.  19 

expected  by  both  parties.  Indeed,  it  cannot  reasonably  be  determined 
that  the  parties  bad  agreed  upon  all  the  matters  -which  they  would 
expect  to  have  included  in  their  bargain,  for  the  time  allowed  for 
the  beginning  and  completion  of  the  work  and  the  mode  of  payment 
are  generally  provided  for  expressly  in  such  arrangements,  and  on 
these  points  their  negotiations  had  been  silent,  awaiting  probably  the 
outcome  of  the  plaintiff's  proposal  for  the  erection  of  the  building. 

We  therefore  think  that  no  contract  was  made  by  the  defendant, 
and  that  the  motions  mentioned  should  have  prevailed. 

The  judgment  is  reversed.^ 


JOHNSTON  BROTHERS  v.   ROGERS   BROTHERS. 
Ontario  High  Court  of  Justice,  Februaby  2,  1899. 

[Reported  in  30  Ontario,  150.] 

An  appeal  by  the  defendants  from  the  judgment  of  William 
Elliott,  senior  Judge  of  the  County  Court  of  Middlesex,  in  favour 
of  the  plaintiffs  in  an  action  in  that  Court,  the  facts  of  which  are 
fully  set  out  in  the  following  [portion  of  the]  opinion  delivered  by 
that  Judge:  — 

The  plaintiffs  are  bakers,  and  seek  to  recover  damages  from  the 
defendants  for  breach  of  a  contract  for  the  sale  and  delivery  of  a 
quantity  of  flour. 

The  following  letter  is  the  basis  of  the  plaintiffs'  claim :  — 

1  Ty)  thf!  foil  owing  cases  it  was  held  that  no  contract  existed  until  the  execution  of 
a  written  contract,  the  si^ingof  wnicn  was  one  of  the  terms  of  a  previons  agreement. 
Ridgway  i-.  Warton,  6  H.  L.  C.  238,  264,  268,  305  ;  Chinnock  v.  Marcbiuiresja  Of  Ely, 
4  De  G.  J.  &  S.  638,  646 ;  Winn  v.  Bull,  7  Ch.  D.  29 ;  Spinney  v.  Downing,  108  Cal. 
666j  Fredericks  v.  Fasnacht,30  La.  Ann.  117  ;  Ferre  Canal  Co.  v.  Burgin,  106  La.  309  ; 
Mississippi.  &c.  S.  S.  Co.  v.  Swift,  86  Me.  248 ;  Willes  v.  Carpenter,  75  Md.  80  ;  Lyman 
V.  Robinson,  14  Allen,  242  ;  Sibley  v.  Felton,  156  Mass.  273  ;  Morrill  v.  Tehama  Co., 
10  Nev.  125;  Water  Commissioners  v.  Brown,  32  N.  J.  L.  504  ;  Brown  i;.  N.  Y.  Cen- 
tral R.  R.  Co.,  44  N.  Y.  79  ;  Commercial  Tel.  Co.  v.  Smith,  47  Hun,  494  ;  NichoUs  v. 
Granger,  7  N.  Y.  App.  Div.  113  ;  Arnold  v.  Rothschild's  Sons  Co.,  37  N.  Y.  App.  Dir. 
564,  aff'd  164  N.  Y.  562;  Franke  v.  Hewitt,  56  N.  Y.  App.  Div.  497;  Congdon  v. 
Darcy,  46  Vt.  478.     See  also  Jones  v.  Daniel,  [1894]  2  Ch.  332. 

In  Mississippi,  &c.  S.  S.  Co.  v.  Swift,  86  Me.  248,  258,  the  Court  said  :  "  From  these 
expressions  of  courts  and  jurists,  it  is  quite  clear  that,  after  all,  the  question  is  mainly 
one  of  intention.     If  the  party  sought  to  be  charged  intended  to  close  a  contract  prior 
to  the  formal  signing  of  a  written  draft,  or  if  he  signified  such  an  intention  to  the 
other  party,  he  will  be  bound  by  the  contract  actually  made,  thoufjh  the  signing  of  the 
written  draft  be  omitted.     If,  on  the  other  hand,  such  party  neither  had  nor  signi- 
fied such  an  intention  to  close  the  contract  until  it  was  fully  expressed  in  a  written 
instrument  and  attested  by  signatures,  then  he  will  not  be  bound  until  the  signatures 
are  affixed.     The  expression  of  the  idea  may  be  attempted  in  other  words :   if  the) 
written  draft  is  viewed  by  the  parties  merely  as  a  convenient  memoriiil,  or  record  nf  I 
their  previous  contract,  its  absence  does  not  affect  the  bindinfr  force  of  tbp.  contract  il 
if,  however,  it  is  viewed  as  the  consummation  of  the  ne<yotiationr  there  is  no  contract] 
ontil  the  written  draft  is  finally  signed.  ' 


20  JOHNSTON   BROTHERS   V.   ROGERS  BROTHERS.       [CHAP.   I. 

"  Toronto,  April  26, 1808. 

"  Deak  Sir,  —  We  -wish  to  secure  your  patronage,  and,  as  we  have  found 
the  only  proper  way  to  get  a  customer  is  to  save  him  money,  we  therefore  are 
going  to  endeavor  to  save  you  money. 

*'  It  is  hardly  prudent  for  us  to  push  the  sale  of  flour  just  now,  as  prices  are 
sure  to  advance  at  least  50  cents  per  barrel  within  a  very  few  days,  and  give 
you  the  advantage  of  a  cut  of  from  20  to  25  cents  per  barrel  seems  a  very  foolish 
thing,  but  nevertheless  we  are  going  to  do  it,  just  to  save  you  money  and 
secure  your  patronage. 

"  We  quote  you  (R.  O.  B.  or  F.  O.  B.)  your  station,  Hungarian  $5.40,  and 
strong  Bakers  $5.00,  car  lots  only,  and  subject  to  sight  draft  with  bill  of 
lading. 

"  y^p.  wnulfj  ^i^p^jTpat,  jrrMir  ngif][r  t.h|^  Tjyjj-p  ^rwj^j^"''  as  priccs  are  80  rapidly 
advancing  that  they  may  be  beyond  reach  before  a  letter  would  reach  us. 

"  Yours  respectfully, 

"Rogers  Bros." 

This  communication  was  received  by  the  plaintiffs  on  the  27th 
April.     The  plaintiffs  telegraphed  the  defendants  the  same  morning 

as  follows :  — 

"  London,  April  27,  1898. 
"To  Rogers  Bros.,  Confederation  Life  Building,  Toronto. 

"  We  will  take  two  cars  Hungarian  at  your  offer  of  yesterday. 

"  Johnston  Bros." 

On  the  same  day,  namely,  the  27th  April,  the  plaintiffs  received  the 
following  communication  by  telegraph :  — 

"  Toronto,  Ont.,  April  27, 1898. 
"  Flour  advanced  sixty.     Will  accept  advance  of  thirty  on  yesterday's  quo- 
tations.    Further  advance  certain. 

"  Rogers  Bros." 

Then  followed  a  letter,  dated  the  28th  April,  from  Messrs.  Hellmuth 
&  Ivey,  solicitors  for  the  plaintiffs,  calling  upon  the  defendants  to 
fulfil  the  order  "according  to  the  offer  contained  in  your  letter  of  the 
26th  and  duly  accepted  by  them  by  wire  on  April  27th;  and  upon 
your  refusal  damages  will  be  demanded." 

The  appeal  was  heard  by  a  Divisional  Court  composed  of  Armour, 
C.J.,  Falconbridge  and  Street,  JJ.,  on  the  26th  January,  1899. 

W.  Carleill-HaU  and  J.   W.  Fayne,  for  the  defendants. 

Hellmuth^  for  the  plaintiffs. 

Falconbridge,  J.  —  The  facts  and  the  correspondence  are  fully 
set  out  in  the  very  careful  judgment  of  the  learned  Judge. 

I  shall  not  refer  to  the  second  and  third  grounds  of  appeal  further 
than  to  say  that  they  have  been  fully  considered,  and,  to  my  mind, 
satisfactorily  disposed  of,  by  the  trial  Judge. 

The  real  crux  of  the  case  is  whether  there  is  a  contract. 

Leaving  out  the  matters  of  inducement  (in  both  the  legal  and  the 
ordinary  sense)  in  the  letter  of  the  26th,  the  contract,  if  there  is 
one,   is  contained  in  the  following  words :  — 


V. 


SECT.    I.]      JOHNSTON   BROTHERS    V.    ROGERS   BROTELERS.  21 

Letter,  Defendants  to  Plaintiffs. 

"  27th  April,  1898. 
"  "VYe  quote  you,  F.  O.  B.  your  station,  Hungarian  §5.40  and  strong  Bakers 
$5.00,  car  lots  only,  and  subject  to  sight  drafts  with  bills  of  lading." 

Telegram,  Plaintiffs  to  Defendants. 

"  27th  April,  1896. 
"  We  will  take  2  care  Hungarian  at  your  offer  of  yesterday." 

I  should  expect  to  find  American  authority  as  to  the  phrase  "'v&e^ 
']\l^^f,  y^'V'  which  must  be  in  very  common  use  amongst  brokers, 
manufacturers,    and   dealers    in    the   United    States;    but   "we   were 
referred   to  no  decided   case,   and    I   have  found  none  where   that 
phrase  was  used. 

In  the  "American  and  English  Encyclopaedia  of  Law,"  2d  ed., 
vol.  7,  p.  138,  the  law  is  stated  to  be:  "A  quotation  of  prices  is 
not  an  offer  to  sell,  in  the  sense  that  a  complete  contract  will  arise 
out  of  the  mere  acceptance  of  the  rate  offered  or  the  giving  of  an 
order  for  merchandise  in  accordance  with  the  proposed  terms.  It 
requires  the  acceptance  by  the  one  naming  the  price,  of  the  order 
so  made,  to  complete  the  transaction.  Until  thus  completed  there 
is  no  mutuality  of  obligation." 

Of  the  cases  cited  in  support  of  this  proposition,  Moulton  v.  Ker- 
shaw (1884),  59  Wis.  316,  48  Am.  Rep.  516,  is  the  nearest  to  the 
present  one,  but  in  none  is  the  word  "quote"  used. 

The  meaning  of  "quote"  is  given  in  modern  dictionaries  as 
follows:  — 

"  Standard"  (Com.) — To  give  the  current  or  market  price  of,  as 
bonds,  stocks,  commodities,  etc. 

"  Imperial,"  ed.  1884  —  In  com.,  to  name  as  the  price  of  an  article; 
to  name  the  current  price  of;  as,  what  can  you  quote  sugar  at? 

"  Century"  (Com.)  — To  name  as  the  price  of  stocks,  produce,  etc. ; 
name  the  current  price  of. 

"  Webster"  (Com.)  —  To  name  the  current  price  of. 

"  Worcester"  — To  state  the  price  as  the  price  of  merchandise. 

See  also  "Black's  Law  Dictionary,"  subtit.  "Quotation." 

There  is  little  or  no  difference  between  any  of  these  definitions. 
Now  if  we  write  the  equivalent  phrase  into  the  letter  —  "We  give 
you  the  current  or  market  price,  F.  O.  B.  your  station,  of  Hungarian 
Patent  $5.40  — "  can  it  be  for  a  moment  contended  that  it  is  an^^ 
oJfe£,,_^hich  needs  oniy  an  acceptance  in  terms  to  constitute  a 
contract  ? 

~^rhe  case  of  Harty  v.  Gooderham  (1871),  31  U.  C.  R.  18,  is  princi- 
pally relied  on  by  the  plaintiffs.  But  that  case  presents  more  than 
one  point  of  distinction.  There  the  first  inquiry  was  from  the  plain- 
tiff, which,  I  think,  is  an  element  in  the  case.     He  writes  the  defend- 


? 


22  JOHNSTON   BROTHERS   V.    ROGERS   BROTHERS.      [CHAP.    I, 

ants  to  let  him  ''know  your  lowest  prices  for  50  O.  P.  spirits,"  etc. 
To  which  defendants  answered,  mentioning  prices  and  particulars: 
"Shall  be  happy  to  have  an  order  from  you,  to  which  we  will  give 
prompt  attention,"  which  the  court  held  to  be  equivalent  to  saying 
"We  will  sell  it  at  those  prices.  Will  you  purchase  from  us  and  let 
us  know  how  much?"  And  so  the  contract  was  held  to  be  complete 
on  the  plaintiff's  acceptance. 

But  there  is  no  such  offer  to  sell  in  the  present  defendant's  letter. 
Harvey  v.  Facey  (1893),  A.  C.  552,  is  strong  authority  against  the 
plaintiffs. 

I  have  not  overlooked  the  concluding  paragraph  of  the  letter,  viz., 
"We  would  suggest  your  using  the  wire  to  order,  as  prices  are  so 
rapidly  advancing  that  they  may  be  beyond  reach  before  a  letter 
would  reach  us."  The  learned  Judge  considers  this  to  be  one  of  the 
matters  foreign  to  a  mere  quotation  of  prices.  I  venture,  on  the 
contrary,  to  think  that  this  suggestion  is  more  consistent  with  a 
mere  quotation  of  prices,  which  might  vary  from  day  to  day  or  from 
hour  to  hour.  There  could  be  no  question  of  the  prices  becoming 
"beyond  reach"  in  a  simple  offer  to  sell  at  a  certain  price. 

In  my  opinion,  the  plaintiffs  have  failed  to  establish  a  contract, 
and  this  appeal  must  be  allowed  with  costs,  and  the  action  dismissed 
with  costs. 

See  also  Thorne  v.  Butterworth  (1866),  16  C.  P.  369  ;  Am.  &  Eng. 
Encyc.  of  Law,  2d  ed.,  vol.  7,  pp.  125,  128,  133,  138;  Ashcroft  v. 
Butterworth  (1884),  136  Mass.  511;  Fulton  v.  Upper  Canada  Furni- 
ture Co.  (1883),  9  A.  R.  211.^ 

1  In  Moulton  v.  Kershaw,  59  Wis.  316,  the  defendants,  salt  dealers,  wrote  to  the  plain- 
tiff, a  dealer  in  salt,  accustomed  to  buy  salt  in  large  quantities  as  the  defendants  knew, 
as  follows :  — 

"  Dear  Sir,  —  In  consequence  of  a  rupture  in  the  salt  trade  we  are  authorized  to 
offer  Michigan  fine  salt,  in  full  carload  lots  of  80  to  95  barrels,  delivered  at  your  city 
at  85  cents  per  barrel  to  be  shipped  per  C.  &  N.  W.  R.  R.  Co.  only.  At  this  price  it  is 
a  bargain,  as  the  price  in  general  remains  unchanged.  Shall  be  pleased  to  receive 
your  order." 

The  plaintiff,  on  the  day  this  letter  reached  him,  telegraphed  :  — 

"  Your  letter  of  yesterday  received  and  noted.  You  may  ship  me  two  thousand 
(2,000)  barrels  Michigan  fine  salt  as  offered  in  your  letter.     Answer." 

The  defendants  replied  on  the  following  day,  refusing  to  fill  the  order. 

The  Court  held  that  no  contract  had  been  created,  chiefly  because  the  defendants' 
letter  did  not  specify  any  limit  of  quantity. 

In  Beaupre'  v.  Pacific  &  Atlantic  Telegraph  Co.,  21  Minn.  155,  the  plaintiffs  wrote: 
"  Have  you  any  more  northwestern  mess  pork  1  also  extra  mess  1  Telegraph  price  on 
receipt  of  this."  The  reply  was  telegraphed  :  "  Letter  received.  No  light  mess  here. 
Extra  mess  $28.75."  The  plaintiffs  replied  by  telegraph  :  "  Despatch  received.  WiU 
take  two  hundred  extra  mess,  price  named."    The  Court  held  there  was  no  contract. 

Harvey  v.  Facey,  [1893]  A.  C.  552;  Talbot  v.  Fettigrew,  3  Dak.  141  ;  Knight  y. 
Cooley,  34  la.  218  ;  Smith  v.  Gowdy,  8  Allen,  566  ;  Schenectady  Stove  Co.  v.  Hoi- 
brook,  101  N.  Y.  45,  ace.    See  also  Kinghorne  v.  Montreal  Tel.  Co.,  U.  C  18  Q.  B.  60. 


SECT.   I.]      SEYilOUR   V.   ARMSTRONG   &   KASSEBAUM.  23 

T.  F.   SEYMOUR  v.   ARMSTRONG   &   KASSEBAUM. 
Kansas  Supreme  Court,  January  Term,   1901. 

[Reported  in  62  Kansas,  720.] 

Johnston,  J.^  This  was  an  action  to  recover  damages  for  the 
breach  of  an  alleged  contract.  On  February  15,  1896,  Armstrong 
&  Kassebaum,  commission  merchants  of  Topeka,  inserted  an  adver- 
tisement in  a  weekly  newspaper,  which,  among  other  things,  con- 
tained the  following  proposition :  — 

"  We  wilLfiay  10|  cents  net,  Topeka,  for  all  frfish.eggsshipped  us  to  arrive 
here  by  February  22.  Acceptance  of  ^ur  bid  with  number  ot  cases  stated  to 
be  sent  by  February  20." 

On  February  20,  1896,  T.  F.  Seymour,  a  rival  commission  mer- 
chant of  Topeka,  sent  the  following  note  to  Armstrong  &  Kassebaum 
in  response  to  their  proposition :  — 

"T  accept  your  offer  in  '  Merchants'  Journal,'  10^  cents,  Topeka,  for  fresh 
eggs,  and  will  ship  you  on  C.  R.  I.  &  P.  R.  R.  450  cases  fresh  eggs,  to  arrive 
on  or  before  February  22.  The  eggs  are  all  packed  in  new  No.  2  whitewood 
cases,  and  I  will  accept  fifteen  cents  each  for  them,  or  you  can  return  them  or 
new  ones  in  place  of  them." 

On  receipt  of  this  note,  Armstrong  &  Kassebaum  at  once  notified 
Seymour  that  they  would  not  accept  the  eggs  on  the  terms  proposed 
by  him.  Notwithstanding  the  refusal,  Seymour  procured  a  car  and 
loaded  it  with  eggs.  Not  having  a  sufficient  number  of  cases  to  fill 
the  car,  he  found  two  other  commission  merchants  who  were  willing 
to  co-operate  with  him,  and  who  furnished  190  of  the  450  cases, 
which  were  loaded  in  Topeka,  only  a  few  hundred  feet  away  from 
the  place  of  business  of  Armstrong  &  Kassebaum,  sealed  up,  and 
then  pushed  a  short  distance  over  to  their  business  house.  They 
refused  to  receive  the  eggs,  and  Seymour  shipped  them  to  Philadel- 
phia, where  they  were  sold  for  8391.83  less  than  they  would  have 
brought  at  the  price  named  in  Seymour's  note  of  acceptance.  For 
this  amount  the  present  action  was  brought,  and  the  plaintiff  is 
entitled  to  recover,  if  the  defendants'  offer  on  eggs  was  uncondition- 
ally accepted.  At  the  trial  a  verdict  was  returned  in  favor  of  the 
defendants,  and  the  result  of  the  general  finding  is  that  the  pretended 
acceptance  of  Seymour  was  not  unconditional,  and  that  no  contract 
was,  in  fact,  made  between  him  and  the  defendants. 

Did  the  negotiations  betweeii  the  parties  result  in  a  contract?     A 
contract  may  originate  in  an  advertisement  addressed  to  the  public   . 
generally,  and  if  the  proposal  be  accepted  by  any  one  in  good  faith, 
without  quaiihcations  or  conditions,  the  contract  is  complete.  .  The~ 
fact  that  there  was  M  IIIHIE  fai  lo  number  or  quantity  of  eggs  in  the 
offer  did  not  prevent  an  acceptance.     The  number  or  quantity  was 

^  A  portion  of  the  opinion  is  omitted. 


24  THE   SATANITA.  [CHAP.   I. 

left  to  the  determination  of  the  acceptor,  and  an  unconditional  ac- 
ceptance naming  any  reasonable  number  or  quantity  is  sufficient  to 
convert  the  offer  into  a  binding  obligation.  It  is  essential,  however, 
that  the  minds  of  the  contracting  parties  come  to  the  point  of  agree- 
ment—  that  the  offer  and  acceptance  coincide;  and  if  they  do  not 
correspond  in  every  material  respect  there  is  no  acceptance  or  com- 
pleted contract.  In  our  view,  the  so-called  acceptance  of  the  plain- 
tiff is  not  absolute  and  unconditional.  IJ:.,a.fiixed  conditions  not^ 
cojnprehended  in  the  proposal,  and  there  could  be  no  apreement 
-^thout  the  assent  ot  tne  proposer  to  such  conditions!  It  is  true  the 
plaintiff"  agreed  to  furnish  eggs  at  10^  cenU  ^CT  dozen,  but  his 
acceptance  required  the  defendant  to  pay  fifteen  cents  each  for  the 
cases  in  which  the  eggs  were  packed  or  to  return  the  cases  or  new 
ones  in  place  of  them.  It  appears  from  the  record  that,  according 
to  the  usages  of  the  business,  the  cases  go  with  the  eggs. 


THE   SATANITA. 
Court  of  Appeal,  March  28,  1895. 

[Reported  in  Law  Reports,  [1895]  Probate,  248.] 

Action  of  damage  by  collision.  The  "  Valkyrie"  and  the  "  Sata- 
nita  "  were  manoeuvring  to  get  into  position  for  starting  for  a  fifty- 
mile  race  at  the  Mudhook  Yacht  Club  regatta,  when  the  "Satanita" 
ran  into  and  sank  the  "Valkyrie." 

The  entry  of  the  "  Satanita"  for  the  regatta  contained  this  clause: 
"  I  undertake  that,  while  sailing  under  this  entry,  I  will  obey  and 
be  bound  by  the  sailing  rules  of  the  Yacht  Racing  Association  and 
the  by-laws  of  the  club. 

Among  the  rules  was  the  following:  Rule  24:  "  .  .  .  If  a  yacht,  in 
consequence  of  her  neglect  of  any  of  these  rules,  shall  foul  another 
yacht  .  .  .  she  shall  forfeit  all  claim  to  the  prize,  and  shall  pay 
all  damages." 

Lord  Esher,  M.R.  This  is  an  action  by  the  owner  of  a  yacht 
against  the  owner  of  another  yacht,  and,  although  brought  in  the 
Admiralty  Division,  the  contention  really  is  that  the  yacht  which  is 
sued  has  broken  the  rules  which  by  her  consent  governed  her  sailing 
in  a  regatta  in  which  she  was  contesting  for  a  prize. 

The  first  question  raised  is  whether,  supposing  her  to  have  broken 
a  rule,  she  can  be  sued  for  that  breach  of  the  rules  by  the  owner  of 
the  competing  yacht  which  has  been  damaged;  in  other  words. 
Was  there  any  contract  between  the  owners  of  those  two  yachts? 
Or  it  may  be  put  thus:  Did  the  owner  of  the  yacht  which  is  Sue's 
enter  into  any  obligation  to  the  owner  of  the  other  yacht,  that  if  his 
yacht  broke  the  rules,  and  thereby  injured  the  other  yacht,  he  would 
pay  damages?     It  seems  to  me  clear  that  he  did;  and  the  way  that 


SECT.   I.]        SEARS   V.   EASTERN   RAILROAD   COMPANY.  25 

be  has  undertaken  that  obligation  is  this.  A  certain  number  of 
gentlemen  formed  themselves  into  a  committee  and  proposed  to  give 
prizes  for  matches  sailed  between  yachts  at  a  certain  place  on  a  cer- 
tain day,  and  they  promulgated  certain  rules,  and  said:  'tlf  you., 
want  to  sail  in  any  of  our  matches  for  our  prize,  you  cannot  do  so 
unless  you  submit  yourselves  to  the  conditions  which  we  have  thus 
laid  down.  And  one  of  the  conditions  is,  that  it  you  do  sail  for 
'one  of  such  prizes  you  must  enter  into  an  obligation  with  the  owners 
of  the  yachts  who  are  competing,  which  they  at  the  same  time  ent*^r 
into  similarly  with  you,  that  if  by  a  breach  of  any  of  our  rules  you 
do  damage  or  injury  to  the  owner  of  a  competing  yacht,  you  shall 
be  liable  to  make  good  the  damage  which  you  have  so  done."  If 
that  is  so,  then  when  they  do  sail,  and  not  till  then,  that  relation  is 
immediately  formed  between  the  yacht  owners.  There  are  other 
conditions  with  regards  to  these  matches  which  constitute  a  relation 
between  each  of  the  yacht  owners  who  enters  his  yacht  and  sails  it 
and  the  committee;  but  that  does  not  in  the  least  do  away  with  what 
the  yacht  owner  has  undertaken,  namely,  to  enter  into  a  relation  with 
the  other  yacht  owners,  that  relation  containing  an  obligation. 

Here  the  defendant,  the  owner  of  the  "Satanita,"  entered  into  a 
relation  with  the  plaintiff  Lord  Dunraven,  when  he  sailed  his  yacht 
against  Lord  Dunraven's  yacht,  and  that  relation  contained  an  obli- 
gation that  if,  by  any  breach  of  any  of  these  rules,  he  did  damage 
to  the  yacht  of  Lord  Dunraven,  he  would  have  to  pay  the  damages.^ 


DAVID   SEARS,   Jr.,   v.   EASTERN  RAILROAD  COMPANY. 

Supreme  Judicial  Court  of  Massachusetts,  January  Term,   1867. 

[Reported  in  14  Allen,  433.] 

Chapman,  J.  If  this  action  can  be  maintained,  it  must  be  for  the 
breach  of  the  contract  which  the  defendants  made  with  the  plaintiff. 
He  had  purchased  a  package  of  tickets  entitling  him  to  a  passage  in 
their  cars  for  each  ticket  from  Boston  to  Lynn.  This  constituted 
a  contract  between  the  parties.  Cheney  v.  Boston  &  Fall  River 
Railroad,  11  Met.  121;  Boston  &  Lowell  Railroad  v.  Proctor, 
1  Allen,  267;  Najac  v.  Boston  &  Lowell  Railroad,  7  Allen,  329. 
The  principal  question  in  this  case  is,  what  are  the  terms  of  the  con- 
tract? The  ticket  does  not  express  all  of  them.  A  public  advertise- 
ment of  the  times  when  their  trains  run  enters  into  the  contract,  and 
forms  a  part  of   it.     Denton  v.  Great   Northern  Railway,  5  El.   & 

1  The  statemeut  of  the  case  is  abbreviated,  and  only  so  much  of  Lord  Esher's 
opmion  is  printed  as  relates  to  tlie  question  whether  a  contract  had  been  made.  Lopes, 
L.J.,  and  Rigbj.  L.J.,  delivered  concurring  opinions.  The  judgment  for  the  plaintiff 
was  aflSrmed  in  Clarke  v.  Dunraven,  [1897]  A.  C.  59.  See  also  Vigo  Agricultural 
Society  v.  Brumfiel,  102  Ind.  146. 


26  SEAKS   V.   EASTERN   RAILROAD   COMPANY.      [CHAP.   L 

Bl.  860.  It  is  an  offer  which,  when  once  publicly  made,  becomes 
binding,  if  accepted  before  it  is  retracted.  Boston  &  Maine  Rail- 
road V.  Bartlett,  3  Cush.  227.  Advertisements  offering  rewards  are 
illustrations  of  this  method  of  making  contracts.  But  it  would  be 
unreasonable  to  hold  that  advertisements  as  to  the  time  of  running 
trains,  when  once  made,  are  irrevocable.  Railroad  corporations  find 
it  necessary  to  vary  the  time  of  running  their  trains,  and  they  have 
a  right,  under  reasonable  limitations,  to  make  this  variation,  even 
as  against  those  who  have  purchased  tickets.  This  reserved  right 
enters  into  the  contract,  and  forms  a  part  of  it.  The  defendants  had 
such  a  right  in  this  case. 

But  if  the  time  is  varied,  and  the  train  fails  to  go  at  the  appointed 
time,  for  the  mere  convenience  of  the  company  or  a  portion  of  their 
expected  passengers,  a  person  who  presents  himself  at  the  advertised 
hour,  and  demands  a  passage,  is  not  bound  by  the  change  unless  he 
has  had  a  reasonable  notice  of  it.  The  defendants  acted  upon  this 
view  of  their  duty,  and  gave  certain  notices.  Their  trains  had  been 
advertised  to  go  from  Boston  to  Lynn  at  9.30  p.  m.,  and  the  plaintiff 
presented  himself,  with  his  ticket,  at  the  station  to  take  the  train; 
but  was  there  informed  that  it  was  postponed  to  11.15.  The  post- 
ponement had  been  made  for  the  accommodation  of  passengers  who 
desired  to  remain  in  Boston  to  attend  places  of  amusement.  Certain 
notices  of  the  change  had  been  given;  but  none  of  them  had  reached 
the  plaintiff.  They  were  printed  handbills  posted  up  in  the  cars 
and  stations  on  the  day  of  the  change,  and  also  a  day  or  two  before. 
Though  he  rode  in  one  of  the  morning  cars  from  Lynn  to  Boston, 
he  did  not  see  the  notice,  and  no  legal  presumption  of  notice  to  him 
arises  from  the  fact  of  its  being  posted  up.  Brown  v.  Eastern 
Railroad,  11  Cush.  101;  Malone  v.  Boston  &  Worcester  Railroad, 
12  Gray,  388.-  The  defendants  published  daily  advertisements  of 
their  regular  trains  in  the  "Boston  Daily  Advertiser,"  "Post,"  and 
Courier,"  and  the  plaintiff  had  obtained  his  information  as  to  the 
time  of  running  from  one  of  these  papers.  If  they  had  published 
a  notice  of  the  change  in  these  papers,  we  think  he  would  have  been 
bound  by  it.  For  as  they  had  a  right  to  make  changes,  he  would 
be  bound  to  take  reasonable  pains  to  inform  himself  whether  or  not 
a  change  was  made.  So  if  in  their  advertisement  they  had  reserved 
the  right  to  make  occasional  changes  in  the  time  of  running  a  par- 
ticular train,  he  would  have  been  bound  by  the  reservation.  It 
would  have  bound  all  passengers  who  obtained  their  knowledge  of 
the  time-table  from  either  of  these  sources.  But  it  would  be  con- 
trary to  the  elementary  law  of  contracts  to  hold  that  persons  who 
relied  upon  the  advertisements  in  either  of  those  papers  should  be 
bound  by  a  reservation  of  the  offer,  which  was,  without  their  knowl- 
edge, posted  up  in  the  cars  and  stations.  If  the  defendants  wished 
to  free  themselves  from  their  obligations  to  the  whole  public  to  run 
a  train  as  advertised,  they  should  publish  notice  of  the  change  as 


SECT.   I.]      BOSTON  AND   MAINE   EAILROAD   V.   BARTLETT.  27 

extensively  as  they  published  notice  of  the  regular  trains.  And  as 
to  the  plaintiff,  he  was  not  bound  by  a  notice  published  in  the  cars 
and  stations  which  he  did  not  see.  If  it  had  been  published  in  the 
newspapers  above  mentioned,  where  his  information  had  in  fact 
been  obtained,  and  he  had  neglected  to  look  for  it,  the  fault  would 
have  been  his  own. 

The  evidence  as  to  the  former  usage  of  the  defendants  to  make  oc- 
casional changes  was  immaterial,  because  the  advertisement  was  an 
express  stipulation  which  superseded  all  customs  that  were  incon- 
sistent with  it.  An  exnress  contract  cannot  be  controlled  or  var|Hd 
bv  usage.     Ware  v.  Hayward  Rubber  (Jo.,  a  Allen,  84. 

The  Court  are  of  opinion  that  the  defendants,  by  failing  to  give 
such  notice  of  the  change  made  by  them  in  the  time  of  running  their 
train  on  the  evening  referred  to  as  the  plaintiff  was  entitled  to  re- 
ceive, violated  their  contract  with  him,  and  are  liable  in  this  action. 

Judgment  for  the  plaintiff. 


B.  —  Duration  and  Termination  of  Offers. 


THE  BOSTON   AND  MAINE    RAILROAD  v.   JOSEPH   H. 
BARTLETT  AND  ANOTHER. 

Supreme   Judicial  Court   of   Massachusetts,  March   Term,  1849. 

[Reported  in  3  Cushing,  224.  | 

This  was  a  bill  in  equity  for  the  specific  performance  of  a  contract 
in  writing. 

The  plaintiffs  alleged  that  the  defendants,  on  the  Lst  of  April,  1844, 
being  the  owners  of  certain  land  situated  in  Boston,  and  particularly 
described  in  the  bill,  "  in  consideration  that  said  corporation  would 
take  into  consideration  the  expediency  of  buying  said  land  for  their  use 
as  a  corporation,  signed  a  certain  writing,  dated  April  1st,  1844," 
whereby  they  agi'eed  to  convey  to  the  plaintiffs  "  the  said  lot  of  land 
for  the  sum  of  twenty  thousand  dollars,  if  the  said  corporation  would 
take  the  same  within  thirty'  days  from  that  date  ; "  that  afterwards,  and 
within  the  thirty  days,  the  defendants,  at  the  request  of  the  plaintiffs, 
"  and  in  consideration  that  the  said  corporation  agreed  to  keep  in 
consideration  tht  expediency  of  taking  said  land,"  &c.,  extended  the 
said  term  of  thirty  days,  by  a  writing  underneath  the  written  contract 
above  mentioned,  for  thirty  days  from  the  expiration  thereof;  that,  on 
the  29th  of  May,  1844,  while  the  extended  contract  was  in  full  force 
and  unrescinded,  the  plaintiffs  elected  to  take  the  land  on  the  tenn.s 
specified  in  the  contract,  and  notified  the  defendants  of  their  election 
and  offered  to  pay  them  the  agreed  price  (producing  the  same  ii' 
money)  for  a  conveyance  of  the  land,  and  requested  the  defendants  to 


28  BOSTON   AND   MAINE   RAILROAD   V.  BARTLETT.      [CHAP.  7. 

execute  a  conve3'ance  thereof,  which  the  plaintiffs  tendered  to  them  for 
that  purpose ;  and  that  the  defendants  refused  to  execute  such  convey- 
ance, or  to  perform  the  contract,  and  had  ever  since  neglected  and 
refused  to  perform  the  same. 

The  defendants  demurred  generally. 

t/i  P.  JETealj/,  for  the  defendants. 

G.  Mmot  (with  whom  was  R.  Choate),  for  the  plaintiffs. 

Heahj^  in  reply,  said  that  in  all  the  cases  cited  for  the  plaintiffs 
except  the  last,  there  was  a  consideration. 

Flktcher,  J.  In  support  of  the  demurrer  in  this  case,  the  only 
ground  assumed  and  insisted  on  by  the  defendants  is,  that  the  agree- 
ment on  their  part  was  without  consideration,  and  therefore  not  obliga- 
tory. In  the  view  taken  of  the  case  by  the  Court,  no  importance  is 
attached  to  the  consideration  set  out  in  the  bill;  namely,  "  tliat  the 
plaintiffs  would  take  into  consideration  the  expediency  of  buying  the 
land."  The  argument  for  the  defendants,  that  their  agreement  was  not 
binding  because  without  consideration,  erroneously  assumes  that  the 
writing  executed  by  the  defendants  is  to  be  considered  as  constituting 
a  contract  at  the  time  it  was  made.  The  decision  of  tlie  court  in 
Maine  in  the  case  of  Bean  v.  Burbank,  4  Shepl.  458,  which  was  referred 
to  for  the  defendants,  seems  to  rest  on  the  ground  assumed  by  them  io 
this  case. 

In  the  present  case,  though  the  writing  signed  by  the  defendants 
was  but  an  offer,  and  an  offer  which  might  be  revoked,  yet,  while  it 
remained  in  force  and  unrevoked,  it  was  a  continuing  offer  during  the 
time  limited  for  acceptance  ;  and,  during  the  whole  of  that  time,  it  was 
an  offer  every  instant ;  but  as  soon  as  it  was  accepted  it  ceased  to  be 
an  offer  merely,  and  then  ripened  into  a  contract.  The  counsel  for  the 
defendants  is  most  surely  in  the  right,  in  saying  that  the  writing  when 
made  was  without  consideration  ;  and  did  not  therefore  form  a  contract. 
It  was  then  but  an  offer  to  contract ;  and  the  parties  making  the 
offer  most  undoubtedly  might  have  withdrawn  it  at  any  time  before 
acceptance. 

But  when  the  offer  was  accepted,  the  minds  of  the  parties  met,  and 
the  contract  was  complete.  There  was  then  the  meeting_of_the_miada. 
of  the  parties,  which  constitutes  and  is  the  definition  of  a  contract. 
The  acceptance  bv  the  plaintiffs  constituted  a  sufficient  legal  consider- 
ation for  the  engagement  on  the  part_of  tliejdefendants.  There  was 
then  nothing  wanting,  in  order  to  perfect  a  valid  contract  on  the  part 
of  the  defendants.  It  was  precisely  as  if  the  parties  had  met  at  the 
time  of  the  acceptance,  and  the  offer  had  then  been  made  and  accepted, 
and  the  bargain  completed  at  once. 

A  different  doctrine,  however,  prevails  in  France  and  Scotland  and 
Holland.  It  is  there  held,  that  whenever  an  offer  is  made,  granting  to 
a  party  a  certain  time  within  which  he  is  to  be  entitled  to  decide  whether 
he  will  accept  it  or  not,  the  party  making  such  offer  is  not  at  libert}'  to 
withdraw  it  before  the  lapse  of  the  appointed  time.  There  are  cer- 
tainly verj'  strong  reasons  in  support  of  this  doctrine.     Highly  respect' 


teltCT.   I.]  LOKING   V.   CITY   OF   BOSTON.  29 

able  authors  regard  it  as  inconsistent  with  the  plain  principles  of  equity 
that  a  person  ^vho  has  been  induced  to  lely  on  such  an  engagement, 
should  have  no  remedy  in  case  of  disappointment.  But,  whether 
wisely  and  equitabl}'  or  not,  the  common  law  unyieldingly  insists  upon 
a  consideration,  or  a  paper  with  a  seal  attached. 

The  authorities,  both  English  and  American,  in  support  of  this  view 
of  the  subject,  are  very  numerous  and  decisive  ;  but  it  is  not  deemed 
to  be  needful  or  expedient  to  refer  particularly  to  them,  as  they  are 
collected  and  commented  on  in  several  reports  as  well  as  in  the  text 
books.  The  case  of  Cooke  v.  Oxley,  3  Term  Rep.  653,  in  which  a 
different  doctrine  was  held,  has  occasioned  considerable  discussion,  and, 
In  one  or  two  instances,  has  probably  influenced  the  decision.  Thai 
case  has  been  supposed  to  be  inaccurately  reported,  and  that  in  fact 
there  was  in  that  case  no  acceptance.  But,  however  that  ma}'  be,  if 
the  case  has  not  been  directl^^  overruled,  it  has  certainly  in  later  cases 
been  entirely  disregarded,  and  cannot  now  be  considered  as  of  any 
author  it}'. 

As  therefore,  in  the  present  case,  the  bill  sets  out  a  proposal  in  writ- 
ing, and  an  acceptance  and  an  offer  to  perform,  on  the  part  of  the 
plaintifls,  within  the  time  limited,  and  while  the  offer  was  in  full  force, 
all  which  is  admitted  by  the  demurrer,  so  that  a  valid  contract  in  writing 
is  shown  to  exist,  the  demurrer  must  be  oven'uled. 


WILLIAM   LORING  and  Another  v.  CITY  OF  BOSTON. 

Supreme  Judicial  Court  of  Massachusetts,  March  Term,  1844. 

[Reported  in  7  Metcalf,  409.] 

Assumpsit  to  recover  a  reward  of  $1000,  offered  by  the  defendants 
for  the  apprehension  and  conviction  of  incendiaries.  Writ  dated  Sep- 
tember 30th,  1841. 

At  the  trial  before  Wilde,  J.,  the  following  facts  were  pi-oved :  On 
the  26th  of  May,  1837,  this  advertisement  was  pubhshed  in  the  daily 
papers  in  Boston :  "  $500  reward.  The  above  reward  is  offered  for  the 
apprehension  and  conviction  of  any  person  who  shall  set  fire  to  any 
building  within  the  limits  of  the  city.  May  '2Q,  1837.  Samuel  A. 
Eliot,  Mayor."  On  the  27th  of  May,  1837,  the  following  advertise- 
ment was  published  in  the  same  papers:  "$1000  reward.  The  fre- 
quent and  successful  repetition  of  incendiary  attempts  renders  it 
necessary  that  the  most  vigorous  efforts  should  be  made  to  prevent 
their  recurrence.  In  addition  to  the  other  precautions,  the  reward 
heretofore  offered  is  doubled.  One  thousand  dollars  will  be  paid  by 
the  city  for  the  conviction  of  any  person  engaged  in  these  nefarious 
practices.  May  27,  1837.  Samuel  A.  Eliot,  Mayor."  ^These  adver- 
tisements  were  continued  in  the  papers  but  about  a  week  ;^ut  there  was 


.; 


30  LORING   V.   CITY   OF   BOSTON.  [CHAP.   1. 

no  vote  of  tl.e  city  government,  or  notice  by  the  mayor,  revoking  tne 
advertisements,  or  limiting  the  time  during  which  they  should  be  in 
force.  Similar  rewards  for  the  detection  of  incendiaries  had  been  be- 
fore offered,  and  paid  on  the  conviction  of  the  offenders ;  and  at  the 
time  of  the  tiial  of  this  case,  a  similar  reward  was  dail}'  published  in 
the  newspapers. 

In  Januar}',  1841,  there  was  an  extensive  fire  on  Washington  Street, 
when  the  Amory  House  (so  called)  and  several  others  were  burnt. 
The  plaintiffs  suspected  that  Samuel  Marriott,  who  then  boarded  in 
Boston,  was  concerned  in  burning  said  buildings.  Soon  after  the  fire 
said  Marriott  departed  for  New  York.  The  plaintiffs  declared  to 
several  persons  their  intention  to  pursue  him  and  prosecute  him,  with 
the  intention  of  gaining  the  reward  of  $1000  which  had  been  offered  as 
aforesaid.  They  pursued  said  Marriott  to  New  York,  carried  with  them 
a  person  to  identify  him,  arrested  him,  and  brought  him  back  to  Boston. 
They  then  complained  of  him  to  the  county  attorney,  obtained  other 
witnesses,  procured  him  to  be  indicted  and  prosecuted  for  setting  fire 
to  the  said  Amor}'  House.  And  at  the  March  Term,  1841,  of  the  Muni- 
cipal Coml;,  on  the  apprehension  and  prosecution  of  said  Marriott, 
and  on  the  evidence  given  and  procured  by  the  plaintiffs,  he  was  con- 
victed of  setting  fire  to  said  house,  and  sentenced  to  ten  years'  confine- 
ment in  the  State  Prison. 

William  Barnicout,  called  as  a  witness  b}'  the  defendants,  testified 
that  he  was  chief  engineer  of  the  fire  department  in  Boston,  in  1837, 
and  for  several  years  after ;  that  alarms  of  fire  were  frequent  before 
the  said  advertisement  in  Ma}',  1837  ;  but  that  from  that  time  till  the 
close  of  the  year  1841,  there  were  but  few  fires  in  the  city. 

As  the  only  question  in  the  case  was,  whether  said  offer  of  reward 
continued  to  be  in  force  when  the  Amor}'  House  was  burnt,  the  case 
was  taken  from  the  jury  by  consent  of  the  parties,  under  an  agreement 
that  the  defendants  should  be  defaulted,  or  the  plaintiflfe  become  non- 
suit, as  the  full  Court  should  decide. 

Peahody  ^  J.  P.  Rogers,  for  the  plaintiffs. 

J.  Pickering  (City  Solicitor) ,  for  the  defendants. 

Shaw,  C.  J.  There  is  now  no  question  of  the  correctness  of  the 
legal  principle  on  which  this  action  is  founded.  The  .affer .  of.Ajewacd. 
for  thp.  detection  of  an  offender,  the  recovery  of  property,  and  the  like, 
ifi  an  Qffer  or  proposal,  on  the  part  of  the  person  making'  it^  to  all  per- 
sons, which  aji}!  one  capable  of  performing  _the_s&meem:\y  accept  at 
any  time  before  it  is  revoked,  and  perform  the  service  ;  and  such  offers 
on7Jtre'"side,  and  acceptance  andTpGr^iiiance  Of' the" service  on  the 
other,  is  a  valid  contract  made  on  good  consideration,  which  the  law 
will  enforce.'     That  this  principle  applies  to  the  offer  of  a  reward  to 

1  "  Tlie  offer  of  a  reward  or  compensation,  either  to  a  particular  person  or  class 
of  persons,  or  to  any  and  all  persons,  is  a  conditional  promise ;  and  if  any  one  t? 
whom  such  offer  is  made  sl;all  perform  the  service  before  tne  offer  is  revoked,  such 
performance  is  a  good  consideration,  and  the  offer  hecornes  a  le^ral  and  binding  ron- 


SECT.    I.]  LORING    V.    CITY   OF   BOSTON.  31 

the  public  at  large  was  settled  in  this  Commonwealth  in  Svmmes  v. 
Frazier,  6  Mass.  344  ;  and  it  has  been  frequently  acted  upon,  and  waa 
recognized  in  the  late  case  of  Wentworth  u.  Da}-,  3  Met.  352. 

The  ground  of  defence  is,  that  the  advertisement,  offering  the  reward 
of  $1000  for  the  detection  and  con\-iction  of  persons  setting  fire  to 
Duildings  in  the  city,  ;yas  issued  almost  four  years  before^  the  _time  at 

■  which  the  plaintiffs  arrested  Marriott  and  pjqsecuted  him  to  conviction  ; 

thntjjTi.s  rPwaTJT^^agjitwvtfprpd  Tn  reference  to  ^special  emergency  in  ~ 

consequence    of  severar~aTannmg  "ffi^esT'  tBat^  the  advertisement^was_ 

withdrawn  and  discontinued;   that  the   recollectioo_Qf .  it  bad  _passed 

/awaTv;  thatlt~wa?obsolete,"and  by  most  persons  forgotten  ;  and  that^it 


^_could,aQtJbfiJ:egarded  as  a  perpetuaUy  continuing  offer  on  the  part  of 
_the-eity 

We  are  then  first  to  look  at  the  terms  of  the  advertisement,  to  see 
what  the  offer  was.  It  is  competent  to  the  party  offering  such  reward 
to  propose  his  own  terms  ;  and  no  pei-son  can  entitle  himself  to  the 
promised  reward  without  a  compliance  with  all  its  terms.  The  first 
advertisement  offering  the  reward  demanded  in  this  action  was  pub- 
lished May  26th,  1837,  offering  a  reward  of  $500  ;  and  another  on 
the  day  following,  increasing  it  to  $1000.  No  time  is  inserted  in  the 
notice,  within  which  the  service  is  to  be  done  for  which  the  reward  is 
claimed.  It  is  therefore  rehed  on— aa,  an  unlimited  and  continuing 
offer.  ♦ 

In  the  first  place,  it  is  to  be  considered  that  this  is  not  an  ordinance 
of  the  city  government,  of  standing  force  and  effect ;  it  is  an  act  tem- 
porary' in  its  nature,  emanating  from  the  executive  branch  of  the  city 
government,  done  under  the  exigency  of  a  special  occasion  indicated 
by  its  terms,  and  continued  to  be  published  but  a  short  time.  Although 
not  limited  in  its  terms,  it  is  manifest,  we  think,  that  it  could  not  have 
been  intended  to  be  perpetual,  or  to  last  ton  or  twenty  jears  or  more  ; 
and  therefore  must  have  been  understood  to  have  some  limit.  It  was 
insisted,  in  the  argument,  that  it  had  no  limit  but  the  Statute  of  Limi- 
tations. But  it  is  obvious  that  the  Statute  of  Limitations  would  not 
operate  so  as  to  make  six  j-ears  from  the  date  of  the  offer  a  bar.  The 
offer  of  a  reward  is  a  proposal  made  by  one  party,  and  does  not  become 
a  contract  until  acted  upon  by  the  performance  of  the  service  b}'  the 
other,  which  is  the  acceptance  of  such  offer,  and  constitutes  the  agree- 
ment of  minds  essential  to  a  contract.  The  six  years,  therefore,  would 
begin  to  run  onl}-  from  the  time  of  the  ser\ice  performed  and  the  cause 
of  action  accrued,  which  might  be  ten,  or  twentv,  or  fift}'  j-ears  from 
the  time  of  the  offer,  and  would  in  fact  leave  the  offer  itself  unlimited 
by  time. 

Supposing,  then,  that  by  fair  implication  there  must  be  some  limit  to 
this  offer,  and  there  being  no  Umit  in  terms,  then  b^'  a  general  rule  of 

tract.  Of  course,  until  the  performance,  the  offer  of  a  reward  is  a  proposal  merely, 
and  not  a  contract,  and  therefore  may  be  revoked  at  the  pleasure  of  liiiQ  who  madt 
it."     Shaw,  C.  J.,  Freeman  v.  City  of  Boston,  6  Met.  56.  57. 


32  LORING   V.    CITY    OF   BOSTON.  [CHAP.   I. 

law  it  must  be  limited  to  a  reasonable  time  ;  that  is,  the  sei'Vice  must  br 
done  within  a  reasonable  time  after  the  offer  made. 

What  is  a  reasonable jtime^  when  all  the  facts  and  circumstances  are 
proved  on  which  it  depends,  is  a  question  of  law.  To  determine  it,  we 
are  first  to  consider  the  objects  and  purposes  for  which  such  reward  is 
offered.  The  principal  object  obviously  must  be  to  awaken  the  atten- 
tion of  the  public,  to  excite  the  vigilance  and  stimulate  the  exertions  of 
police  officers,  watchmen,  and  citizens  generally,  to  the  detection  and 
punishment  of  offenders.  Possibly,  too,  it  may  operate  to  prevent 
offences,  bj'  alarming  the  fears  of  those  who  are  under  temptation  to 
commit  them,  by  inspiring  the  belief  that  the  public  are  awake,  that 
any  suspicious  movement  is  watched,  and  that  the  crime  cannot  be 
committed  with  impunity.  To  accomplish  either  of  these  objects,  such 
offer  of  a  reward  must  be  notorious,  known  and  kept  in  mind  by  the 
public  at  large  ;  and  for  that  purpose  the  publication  of  the  offer,  if  not 
actually  continued  in  newspapers,  and  placarded  at  conspicuous  places, 
must  have  been  recent.  After  the  lapse  of  years,  and  after  the  pub- 
lication of  the  offer  has  been  long  discontinued,  it  must  be  presumed 
to  be  forgotten  by  the  public  generally,  and,  if  known  at  all,  known 
only  to  a  few  individuals  who  may  happen  to  meet  with  it  in  an  old 
newspaper.  The  expectation  of  benefit  then  from  such  a  promise  of 
reward  must  in  a  great  measure  have  ceased.  Indeed,  every  consid- 
eration arising  from  the  nature  of  the  case  confirms  the  belief  that  such 
offer  of  reward,  for  a  special  service  of  this  nature,  is  not  unlimited 
and  perpetual  in  its  duration,  but  must  be  limited  to  some  reasonable 
time.  The  difficult}^  is  in  fixing  it.  One  circumstance  (perhaps  a  slight 
one)  is  that  the  act  is  done  by  a  board  of  officers,  who  themselves  are 
annual  officers.  But  as  they  act  for  the  cit}',  which  is  a  permanent 
body,  and  exercise  its  authority  for  the  time  being,  and  as  such  a 
reward  might  be  offered  near  the  end  of  the  year,  we  cannot  neces- 
sarily limit  it  to  the  time  for  which  the  same  board  of  mayor  and 
aldermen  have  to  serve ;  though  it  tends  to  mark  the  distinction 
between  a  temporary  act  of  one  branch  and  a  permanent  act  of  the 
whole  city  government. 

JWe  have  already  alluded  to  the  fact  of  the  discontinuance  of  the- 

advertisement,  as  one  of  some  weighty  It  is  some  notice  to  the  public 
"that  fhe~exigency  has  passed  for  which  such  offer  of  a  reward  was 
particularly  intended.  And  though  such  discontinuance  is  not  a 
revocation  of  the  offer,  it  proves  that  those  who  made  it  no  longer  hold 
it  forth  conspicuously  as  a  continuing  offer ;  and  it  is  not  reasonable 
to  regard  it  as  a  continuing  offer  for  any  considerable  term  of  time 
afterwards. 

But  it  is  not  necessary,  perhaps  not  proper,  to  undertake  to  fix  a 
precipe  time  as  reasonable  time  ;  it  must  depend  on  many  circumstances. 
It  is  somewhat  analogous  to  the  case  of  notes  paj-able  on  demand, 
where  the  question  formerly  was,  within  what  time  such  note  must  be 
presented,  and,  in  case  of  dishonor,  notice  be  given,  in  order  to  charge 


SECT.    I.]  AVERILL   V.    HEDGE.  33 

the  indorser.  In  the  earliest  reported  case  on  the  subject  (Field  v. 
Nickerson,  13  Mass.  131),  the  Court  went  no  farther  than  to  decide  taat 
eight  months  was  not  a  reasonable  time  for  that  purpose. 

Under  the  circumstances  of  the  present  case,  the  Court  are  of  the 
opinion  that  three  years  and  eight  months  is  not  a  reasonable  time 
within  which,  or  rather  to  the  extent  of  which,  the  offer  in  question  can 
be  considered  as  a  continuing  offer  on  the  part  of  the  city.  In  that 
length  of  time,  the  exigency  under  which  it  was  made  having  passed, 
it  must  be  presumed  to  have  been  forgotten  by  most  of  the  officers  and 
citizens  of  the  community,  and  cannot  be  presumed  to  have  been  before 
the  public  as  an  actuating  motive  to  vigilance  and  exertion  on  tbia 
subject;  nor  could  it  justly  and  reasonably  have  been  so, understood  by 
the  plaintin^^  We  are^  therefore  of  opinion  that  the  offer  of  the  city 
had  ceased  before  the  plaintiffs  accepted_and  acted  upon  ffli¥"sucli,  and^ 
_^ajLcQnsequentiyjQolcpntract  existed  upon  which  this  action,  founded^ 
on_aa  alleged  expressi^omise^^caBL  be  maintained. 

Plaintiff's  nonsuit.^ 


AVERILL  AND  ANOTHER  v.   HEDGE. 
Supreme  Court  of  Errors  of  Connecticut,  June,  1838. 

[Reported  in  12  Connecticut  Reports,  424.] 

This  was  an  action  of  assumpsit,  alleging  that  the  defendant,  who 
conducted  business  at  Wareham,  Mass.,  under  the  name  of  the  "  Wash- 
mgton  Iron  Company,"  promised  to  deliver  to  the  plaintiffs  a  quantity 
of  rods,  shapes,  and  band-iron,  in  March,  1836. 

The  cause  was  tried  at  Hartford,  February  Term,  1838,  before 
Williams,  C.J. 

The  plaintiffs  claimed  to  have  proved  their  case  by  a  correspondence 
between  the  parties  in  the  year  1836  ;  particularly  by  a  letter  from 
the  plaintiffs  to  the  defendant,  dated  the  29th  of  February' ;  the  defend- 
ant's answer  of  the  2d  of  March  ;  a  letter  from  the  plaintiffs,  dated 
the  14th  of  March ;  and  the  answer  of  the  defendant,  also  dated  the 
14th  of  March  by  mistake,  in  fact  written  the  16th  of  March;  and  the 
plaintiffs'  reply  thereto  dated  the  19th  of  March.  The  whole  corre- 
spondence between  the  parties  was  read  in  evidence ;  the  substance  of 
which  was  as  follows  :  — 

1  In  Drummond  v.  United  States,  35  Ct.  CI.  356,  it  was  held  that  a  right  to  a  reward 
offered  for  the  arrest  of  a  criminal  was  gained  by  making  the  arrest  ten  years  after  the 
offer  was  made,  the  criminal  being  still  a  fugitive  from  justice. 

In  Mitchell  v.  Abbott  86  Me.  338,  it  was  held  that  a  lapse  of  twelve  years  between 
the  time  when  the  reward  was  offered  and  the  time  of  performance  was  more  than  a 
reasonable  time. 

In  The  matter  of  Keily,  39  Conn.  159,  it  was  held  that  an  offer  of  reward  for  a  par- 
ticular crime  would  not  lapse  until  the  Statute  of  Limitations  barred  conviction  for  the 
crime.     See  also  Shaub  v.  Lancaster,  156  Pa.  362. 

VOL.    I. 3 


34  AVEKILL   V.    HEDGE.  [CHAP.   I. 

IIautford,  29th  P'ebruary,  1836.  Dear  Sik,  —  Regarding  tho  future  dis- 
posal of  your  nails  as  settled,  it  would  be  improper  to  importune  you  further 
on  that  point.  Perhaps,  however,  you  will  not  object  to  sending  us  a  supply  of 
rods  and  shapes  for  our  spring  sales.  Please  to  say  on  what  terms  you  wih 
(tend  us  ten  or  fifteen  tons,  assorted,  by  first  packet  in  the  spring.  We  shali 
also  be  glad  to  purchase  our  hollow  ware  of  you  on  the  same  terms  a.s  heretofore. 
Shall  be  pleased  to  hear  from  you  soon.  [Signed,  "J.  &  11.  Averill,"  the 
plaintiffs;  and  addressed  to  Jonx  Thomas,  Esq.] 

Warrham,  2d  March,  183G.  Ou  the  writer's  return  from  the  South  lasl 
evening,  he  found  your  favor  of  the  29th  ult.,  to  which  we  now  reply.  We  will 
deliver  to  you  in  Hartford  ten  or  fifteen  tons  of  rods,  shapes,  and  band-iron,  afl 
follows:  say  —  shapes  and  band-Lron,  atf  110  per  gross  ton,  six  months;  and  old 
«able  rods,  at  $116,  six  months.  Old  sable  iron  is  now  quick  at  8110  }")er  ton  m 
Boston;  and  there  is  but  very  little  iron  there  at  any  price.  We  wiiJ  aeliver 
you  at  Hartford  a  common  assortment  of  hollow  ware,  at  -^28  per  ton,  six 
months.  [Signed  "  W^ashington  Iron  Co.mpany,  per  JuftN  Tho.mas, 
Agent;  "    and  addressed  to  the  plaintiffs.] 

Hartford,  \^  March,  1836.  Df,ar  Sir, — We  have  bought  ol  Ripley  & 
Averill  their  stock  of  hollow  ware,  with  the  understanding  chat  we  were  to 
receive  the  benefit  of  their  orders  given  you  last  July.  The  balance  of  this  ordei 
we  believe  was  in  readiness  last  fall;  but,  owing  to  tne  early  closing  of  oui 
navigation,  was  not  shipped.  W^ill  you  ship  us  this  lotol  ware  by  first  packet, 
on  t«rms  tlien  agreed  on  with  R.  &  A.  ?  Please  advise  us  by  return  mail  if  we 
may  expect  it.     [Signed  by  plaintiffs,  and  addressed  to  John  Thomas,  Esq.J 

Wareham,  I\larch  14,  1836.  Dear  Sirs,  — Your  favor  of  the  14th  inst.  is 
Kt  hand,  and  contents  noted.  We  shall  most  cheerfully  comply  with  youi 
request  to  ship  to  you  the  balance  of  Ripley  &  AveriU's  order  of  hardware,  not 
filled  in  consequence  of  the  early  frost  last  autumn;  such  being  the  understand- 
ing between  yourselves  and  Mr.  Ripley.  We  learn  from  our  neighbors, 
engaged  in  the  manufacture  of  this  article,  that  they  now  hold  it  at  $30  pei 
ton,  and  shall  not  sell  it  at  a  less  price  through  the  season;  and  consequently 
we  shall  not  consider  om-selves  holden  to  the  offer  made  to  you  on  the  2d  inst., 
unless  you  signify  yiQur  acceptance  thereof  by  retm'u  mail,  but  shall  furnish 
the  balance  of  Itipley  &  AveriU's  order  in  conformity  with  the  contracts  made 
with  them. 

Do  you  accept  of  our  proposal  for  supplying  you  with  rods,  shapes,  and 
band-iron;  and  if  so,  what  quantity  of  each  shall  we  send  you?  [Signed, 
"  Washington  Iron  Company,  per  John  Thomas,  Agent;  "  and  addressed 
to  the  plaintiffs.] 

Hartford,  March  19th,  1836.  Dear  Sir,  — Your  favor  of  the  17th  came 
to  hand  last  evening,  too  late  to  be  answered  before  this  morning.  We  note 
and  duly  appreciate  your  prompt  assent  to  send  us  the  balance  of  R.  &  A.'s 
order  for  hollow  ware,  at  old  prices.  In  our  future  purchases  of  that  article,  we 
will  buy  of  you  at  $28  per  ton,  six  months,  as  offered  in  your  favor  of  the  2d. 
We  will  also  take  the  following  shapes,  &c.,  on  your  terms  there  given:  160 
bundles  of  new  sable  or  Swedes,  different  shapes,  specified ;  also  40  bundles 
smaller  shapes,  to  be  of  old  sable,  assorted;  120  bundles  band-iron,  assorted; 
60  bundles  half-inch  spike  rods;  200  bundles  P  S  I  horse-nail  rods,  or  a  ton, 
if  convenient,  in  281b.  bundles,  sending  .5  tons  in  all.  [Signed  by  the  plain- 
tiffs, and  addressed  to  John  Thomas,  Esq.] 

In  a  letter  dated  March  21st,  1836,  addi-essed  to  John  Thomas,  £^.. 
the  plaintiffs  alter  their  order  for  band-ii'oa,  varying  the  sorts. 


SECT.   I.J  AVERILL   V.   HEDGE.  35 

"Wareham,  Ajril  2d,  1836.  Your  favors  of  the  19th  and  21st  reached  here 
in  the  absence  of  the  writer.  We  regret  that  you  had  not  sooner  signified  your 
acceptance  of  our  proposition  of  the  2d  of  March,  touching  supplies  of  shapes, 
band-iron,  &c  ,  as  we  had,  prior  to  the  reception  of  your  favors  above  alhided 
to,  entered  into  such  engagements  in  other  markets  as  rendered  it  impossible  for 
us  to  supply  you  with  those  articles  on  any  terms.  [Signed  "  Washington 
Ikon  Company,  per  John  Thomas,  Agent;  "  and  addressed  to  the  plaintiffs.] 

On  the  6th  of  April,  1836,  the  plaintiffs  addressed  a  letter  to  the 
defendant's  agent,  remonstrating  against  his  conduct  in  refusing  tc 
send  them  the  iron  ordered.  The  defendant's  agent  replied,  by  a  letter 
dated  the  8th  of  April,  as  follows  :  — 

On  29th  February  yoxi  ask  our  terms  for  10  or  15  tons  of  rods  and  shapes. 
On  2d  March  we  give  them  to  you  per  mail.  On  14th  March  you  again  address 
us  upon  another  subject;  but  although  our  proposition,  in  ordinary  course  of 
mail,  must  have  been  in  your  hands  10  to  12  days,  yet  no  allusion  was  made 
to  it.  On  16th,  after  replying  to  yours  of  14th,  we  ask  if  you  accede  to  our 
proposition  of  the  2d.  After  this,  we  waited  for  your  reply  until  the  22d,  when, 
not  having  heard  from  you,  we  made  such  other  arrangements  as  made  it 
impossible  for  us  to  fill  your  orders  of  19th  or  21st,  both  which  came  together 
in  the  same  mail  on  23d.  We  did  not  intend  the  question  proposed  to  you  in 
ours  of  16th  as  a  renewal  of  our  proposals  of  the  2d  ult.,  nor  do  we  believe  that 
it  will  bear  that  construction ;  but  nevertheless  we  should  have  filled  your  order 
had  it  been  seasonably  received. 

This  correspondence  was  conducted  through  the  mail ;  upon  the  part 
of  the  defendant,  by  his  avowed  agent,  John  Thomas,  and  by  the 
plaintiffs  themselves  on  their  part.  The  plaintiffs  resided  in  the  cit}'  of 
Hartford,  near  the  post-office. 

The  letter  written  by  the  defendant  on  the  16th  of  March,  dated 
14th,  arrived  at  Hartford  on  the  18th  of  March,  about  2  o'clock  p.  m. 
The  plaintiff's  answer  to  the  letter,  dated  the  I'Jth  of  March,  was  post 
marked  the  20th ;  and  the  letter  written  by  the  plaintiffs  on  the  21st 
of  March  was  post-marked  on  the  day  of  its  date ;  and  both  letters 
arrived  at  Wareham  at  the  same  time,  viz.,  on  the  23d  of  March. 

The  plaintiffs  claimed  that  during  said  month  of  March  the  price 
of  the  article,  which  was  the  subject  of  controversy,  was  constantly 
advancing  in  the  market ;  and  that  the}'  had  sustained  loss  in  their 
business  by  the  non-compliance  of  the  defendant  with  his  contract. 

The  defendant  introduced  a  witness  to  prove  that  letters  mailed  a* 
Hartford  for  Wareham  were,  by  the  usual  course  of  mail,  sent  b}' 
Providence,  and  would  reach  that  place  on  the  evening  of  the  day 
after  leaving  Hartford,  —  but  might  be  sent  b}'  Boston;  although, 
when  sent  bj-  Boston,  on  the  da3's  that  both  mails  went,  a  letter  would 
be  one  day  longer  in  reaching  Wareham ;  that  a  mail  was  sent  every 
day  from  Hartford  to  Boston,  and  every  day  but  Sunday  from  Hart- 
ford to  Providence ;  that  the  Providence  mail  usuall}'  left  the  post- 
office  in  Hartford  about  5  o'clock  every  morning,  except  Sundaj-,  when 
no  mail  was  soit,  and  Monday,  when  it  left  about  10  o'clock  a.m. 
The  mails  were,  in  the  course  of  business,  closed  one  hour  before  thev 


36  AVEEILL   V.    HEDGE.  [CHAP.    £, 

left  the  office.  Upon  the  19th  of  March,  1836,  the  Providence  mail 
left  the  office  at  25  minutes  past  5  o'clock  in  the  morning,  and  on  the 
2l8t  at  G  minutes  past  ten  in  the  morning.  The  20th  was  Sunday ; 
and  letters  put  into  the  office  on  Saturday  evening  and  on  Sunday 
evening  would  be  forwarded  b}'  the  same  mail.  The  usual  course  of 
business  at  the  post-office  in  Hartford  was  to  stamp  or  post-mark  all 
letters,  not  on  the  day  thej'  were  forwarded,  but  the  da}'  they  were 
received  into  the  office,  —  unless  received  after  9  o'clock  in  the  evening, 
when  the}'  were  post-marked  as  of  the  succeeding  day. 

Upon  the  facts  so  proved  and  disclosed  in  the  correspondence,  the 
plaintitfs  claimed  that  the  proposal  of  the  defendant,  in  his  letter  of 
the  2d  of  March,  to  furnish  the  plaintiffs  with  rods,  shapes,  and  band- 
iron,  was  renewed  by  his  letter  written  16th  of  March,  and  dated  14th ; 
and  that  the  plaintiffs,  by  their  answer  of  the  19th  of  March,  in  due 
time  signified  their  assent  to  the  proposal  therein  contained ;  and  thus 
was  the  contract  stated  in  the  declaration  completed. 

These  claims  of  the  plaintiffs  were  aU  resisted  and  denied  b}'  the 
defendant. 

The  Court  charged  the  jury,  that  inmereantile  transactions  of  this 
character,  affected  as  they  must  be  by^tSe^constant  fluctuations  ^ 
markets,  the  utrnost  promptitude  musF~5e~exacted~roTrsistent  with  a 
due  regard  to  ordinary  business  T~and^hat  if  the  letter  written  by  the 
pjaintiffs,  accepting  the  proposal  of  the  defendant  relative  to  said  rods, 
bands,  «S:;c.,  was  not  delivered  into  the  post-office  in  Hartford  before 
the  day  it  was  post-marked,  viz.  the  20th  of  March,  it  was  not  sent  in 
such  reasonable  time  as  to  make  their  acceptance  obligatory  upon  the 
defendant. 

A  verdict  was  thereupon  returned  for  the  defendant ;  and  the  plain- 
tiffs moved  for  a  new  trial. 

Hungerford,  in  support  of  the  motion. 

T.  C.  Perkms^  contra. 

BissELL,  J.  From  the  correspondence  between  these  parties,  and 
which  is  made  a  part  of  the  case,  it  appears,  that  on  the  29th  of  Feb- 
ruary, 1836,  the  plaintiffs  inquired  of  the  defendant  upon  what  terms 
he  would  supply  them  with  ten  or  fifteen  tons  of  rods,  shapes,  and 
band-iron.  To  this  communication  the  defendant  repHed  on  the  2d  of 
March,  specifying  the  terms  on  which  he  would  furnish  the  articles  in 
question.  On  the  14th  the  plaintiffs  wrote  to  the  defendant  on  other 
business ;  but  took  no  notice  of  his  offer.  The  defendant  replied  on 
the  1 6th ;  and  at  the  close  of  his  letter  he  inquires  of  the  plaintiffs 
whether  they  accept  his  proposal  regarding  the  rods,  shapes,  and  bands. 
This  letter,  it  appears,  arrived  at  Hartford  on  the  18th,  about  2  o'clock 
afternoon.  The  plaintiffs  accept  the  defendant's  proposals  in  a  letter 
dated  on  the  19th,  but  which  the  jury  have  found  was  not  delivered 
into  the  post-office  at  Hartford  until  the  20th ;  and  the  20th  being 
Sunday,  and  no  mail  leaAung  Hartford  on  that  day,  the  letter  was  not 
actuall}'  sent  until  the  morning  of  the  21st.  And  it  further  appears 
that  this  letter,  and  also  another  from  the  plaintitfs,  dated  the  21st, 
reached  the  defendant  on  the  23d.     It  also  appears  that  the  defendant 


SECT.   I.]  AVERILL  V.   HEDGE.  37 

having  waited  for  ctie  plaintiffs'  answer  until  the  22d,  and  having  heard 
nothing  from  them,  then  made  such  arrangements  as  rendered  it  im- 
possible for  him  to  comply  with  their  order.  It  is  further  found,  that 
on  the  19th  of  March  the  Providence  mail  left  the  office  at  Hartford 
at  25  minutes  past  5  o'clock;  and  that  a  letter  forwarded  by  that  mail 
would  have  reached  the  defendant  on  the  evening  of  the  following 
day. 

The  great  question  in  the  case  is,  whether  upon  these  facts  there_baa. 
been  such  an  acceptance  of  the  defendant's  offer  a^  that  he  is  hound 
b^it._ 

The  jurj'  were  instructed  that  if  the  letter  written  by  the  plaintiffs, 
accepting  the  proposal  of  the  defendant,  was  not  delivered  into  the 
post-office  at  Hartford  until  the  20th  of  March,  it  was  not  sent  in  such 
reasonable  time  as  to  make  their  acceptance  obligatory  on  the  defend- 
ant. 

Several  questions,  not  immediately  growing  out  of  the  charge,  but 
which,  if  decided  in  favor  of  the  defendant,  make  an  end  of  the  case, 
have  been  much  discussed  at  the  bar. 

1 .  It  has  been  contended  that  the  proposal  of  the  defendant,  in  his 
letter  of  the  2d,  was  not  renewed  by  his  letter  of  the  16th  of  March 
Upon  this  point  no  opinion  was  given  by  the  judge  on  the  circuit, 
unless  an  opinion  may  be  inferred  from  the  gi-ound  on  which  he  rested 
the  case  in  his  instructions  to  the  jury.  Nor  is  it  essential  that  a 
decided  opinion  on  the  question  should  be  expressed  by  this  Court ; 
because  there  are  other  grounds  on  which  we  are  unanimously  of  opin- 
ion that  the  ruling  of  the  judge  below  must  be  sustained. 

Were  this,  however,  a  turning  point  in  the  case,  we  should  probably 
be  prepared  to  say  that  the  defendant's  letter  of  the  16th  of  Marcli_ 
does  contain  a  distinctrenewal  of  his  former  proposal.  His  language 
is  certainly  very  strong  to  show  that  such  was  his  intention.  He  sa3's : 
"Do  you  accept  of  our  proposal  for  supplying  3'ou  with  rods,  shapes, 
and  band-iron  ;  and  if  so,  what  quantity  of  each  shall  we  send  you  ?  " 
Now  we  cannot  but  think  that  the  fair  and  obvious  construction  of  this 
language  is  that  the  defendant  then  stood  read}'  to  supply  the  articles 
upon  the  terras  already  specified.  And  such  appears  to  have  been  his 
own  view  of  the  case,  as  is  manifest  from  his  subsequent  letter  of  the 
8th  of  April. 

2.  It  has  been  urged,  that  admitting  this  letter  to  contain  a  renewal 
of  the  former  proposal,  j'et,  by  the  terms  ofit^  the  plaintiffs  were  bound 
to  signify  tlietr  acceptance  by  return  of  mail.  The  question,  in  thii 
aspect  of  it,  is  manifestly  independent  of  any  mercantile  usage.  That 
the  defendant  had  a  right  to  attach  this  condition  to  his  offer  is  undeni- 
able. The  question  is,  whether  he  has  done  so ;  and  whether  such  is 
the  true  construction  of  his  letter. 

In  his  letter  of  the  2d  of  March,  the  defendant  had  offered  to  sup- 
ply the  plaintiffs  an  assortment  of  hollow  ware  at  certain  prices ;  and 
in  regard  to  this  offer,  in  his  letter  of  the  16th,  he  says :  "  We  shall 
not  consider  ourselves  holden  to  the  offer  made  you  on  the  2d  inst., 
unless  3'ou  signify  your  acceptance  thereof  by  return  of  mail ;  "  and  he 


88  AVEEILL   V.   HEDGE.  [CHAP.    I. 

then  puts  the  inquiry  with  regard  to  rods,  shapes,  and  hand-iron,  that 
has  been  ah-eady  mentioned.  Now,  it  shouUl  he  borne  in  mind,  that 
the  defendant's  i)roposal,  in  regard  to  tliese  articles,  had  ah'ead}'  been 
before  the  plaintiffs  for  at  least  ten  or  twelve  days ;  and  one  claim  pnt 
forth  b}'  them  on  the  trial  was.  that  during  the  month  of  ISIarch  the 
price  of  these  articles  was  constantly  advancing  in  the  market.  The 
question  then  arises,  whether  under  these  circumstances  it  was  the 
intention  of  the  defendant  to  give  them  further  time  ;  and  whether  such 
intention  can  be  faii'ly  inferred  from  the  language  of  his  communica- 
tion. In  regai-d  to  the  hollow  ware,  there  can  be  no  question.  The 
plaintiffs  were  positively  required  to  signif}'  their  acceptance  by  return 
mail.  And  when,  in  the  same  letter  and  under  similar  circumstances, 
they  are  also  required  to  decide  upon  the  proposal  in  regard  to  the 
rods,  &c.,  it  is  certainl}'  not  easy  to  see  whv  the  defendant  should  have 
made,  or  should  have  intended  to  make,  a  distinction  between  these 
classes  of  articles.  Had  the  judge  directed  the  Jury  that  the  defendant 
was  not  bound,  unless  the  plaintiffs  signified  their  acceptance  b}'  return 
of  mail,  we  are  b}'  no  means  satisfied  that  the  direction  would  have 
been  wi'ong.  As,  however,  he  placed  the  case  on  grounds  more  favor- 
able to  the  plaintiffs'  claim,  a  decision  upon  this  point  is  unnecessary. 
Any  further  discussion  of  it  is  therefore  waived. 

3.  We  come  then  to  the  inquiry,  whether  the  instruction  actually 
given  to  the  jur}'  is  correct  in  point  of  law.  And  here  it  maj'  be 
remarked,  that  it  is  very  immaterial  when  the  letter  of  the  plaintiffs  was 
written:  until  sent,  it  was  entirely  in  their  power  and  under  their  con- 
trol, and  was  no  more  an  acceptance  of  the  defendant's  offer  than  a 
bare  determination,  locked  up  in  their  own  bosoms  and  uncommuni- 
cated,  would  have  been.  And  it  surel}'  will  not  be  claimed  that  mere 
volitions,  a  mere  determination  to  accept  a  proposal,  constitute  a  con- 
tract. The  plaintiffs  then  did  not  accept  the  defendant's  proposition 
until  the  20th,  and  for  aught  that  appears  [not]  until  the  evening  of 
that  day.  That  they  were  bound  to  accept  within  a  reasonable  time 
was  distinctly  admitted  in  the  argument ;  and  if  not  admitted,  the  posi- 
tion is  undeniable.  The  ^ase  of  the  plaintiffs  then  comes  to  this,  and 
this  is  the  precise  ground  of  their  claim :  That  they  had  a  right  tohold 
the  defendant's  offer  under_adYisement  for  mare  Ihan-fiarty-eight  hours, 
and  to  await  the  arrival  of  three jnails  from  New  Yoj-k.  advising  them 
of  the  state  of  the  commodity  in  the  jnarket ;  and  having  then  deter- 
mined to_accept,  the  det'endant  was-JKiund_by  his  offerj,  and  that  this 
constitutes  a  valid  mercantile  contract.  Now,  in  regard  to  such  a  claim, 
we  can  onl^'  say,  that  it  appears  to  us  to  be  in  the  highest  degree  un- 
reasonable ;  and  that  we  know  of  no  principle,  of  no  authority,  from 
which  it  derives  the  slightest  support. 

Indeed,  it  seems  to  us  to  be  subversive  of  the  whole  law  of  contracts. 
For  it  is  most  obvious,  that,  if  during  the  intei'val  the  defendant  was 
bound  by  his  offer,  there  was  an  entire  want  of  mutuality :  the  one 
party  was  bound,  while  the  other  was  not.  Had  the  proposition  been 
made  at  a  personal  interview  between  the  parties,  there  can  be  no  pre- 
tence that  it  would  have  bound  the  defendant  beyond  the  termination 


SECT   I.J  AVERILL   V.    HEDGE,  '6^ 

of  the  interview.  The  case  of  Cooke  v.  Oxley,  3  Term  Rep.  653,  is 
decisive  on  this  point,  and  goes  much  further.  There,  A.,  having  pro- 
posed to  sell  goods  to  B.,  gave  him,  at  his  request,  a  certain  time  to 
determine  whether  he  would  buy  them  or  not;  and  it  was  held,  tiiat 
although  B.  determined  within  the  time,  A.  was  not  bound.  And 
Lord  Kenyon  there  says:  "Nothing  can  be  clearer  thau  that  at  the 
time  of  entering  into  this  contract,  the  engagement  was  all  on  one  side ; 
the  other  party  was  not  bound  ;  it  was,  therefore,  nudum  pactum."  So 
also  in  the  case  of  Payne  v.  Cave,  3  Term  Rep.  148,  it  was  decided 
that  the  bidder  at  an  auction,  under  the  usual  conditions  that  the  high- 
est bidder  shall  be  the  purchaser,  ma}'  retract  his  bidding  at  an}'  time 
before  the  hammer  is' down. 

Now,  it  is  most  manifest,  that  if  the  principle  of  these  cases  is  to  be 
applied  to  and  govern  the  present,  they  are  entirely  decisive  of  it  in 
favor  of  the  defendant.  It  is  however  claiinpd.  nnd  pnrli.ips  justly,  that 
the  case  of  Cooke  v.  Qxlcy  has-becn,. disregarded,  if  not  overruled,  by 
the  more  modem  decisions  ;  or  at  least  that  it  has  been  holdeii  not  to. 
apply  to  mercantile  c(2iiJLra£ts,  negotiated  through  the  medium  of  the 
liost-ofhce.  Thus,  in  the  case  of  Adams  v.  Lindsell,  1  B.  &  A.  G81, 
there  was  an  offer  to  sell  goods  on  certain  specified  terms,  provided  an 
acceptance  of  the  offer  was  signified  by  return  of  mail.  This  was 
done  ;  and  it  was  held  (the  defendant  not  having  retracted  his  otfer  in 
the  mean  time),  that  the  contract  was  complete.  It  is  not  eas}'^  to 
reconcile  this  decision  with  that  of  Cooke  v.  Oxlej',  unless  it  can  be 
distinguished  on  the  ground  that,  as  the  offer  was  made  tln'ough  the 
mail,  the  part}'  is  to  be  considered  as  repeating  the  offer  at  every 
moment  until  the  other  part}'  has  had  an  opportunity  of  manifesting 
nis  acceptance.  And  this  seems  to  have  been  the  ground  on  which  the 
case  was  placed  by  the  Court  of  King's  Bench.  They  say:  "  If  the 
defendants  were  not  bound  by  their  offer,  when  accepted  by  the  plain- 
tiffs, till  the  answer  was  received,  then  the  plaintiffs  ought  not  to  be 
bound  till  after  they  had  received  the  notification  that  the  defendant 
had  received  their  answer,  and  was  bound  by  it ;  and  so  it  might  go  on 
ad  injinitum.  The  defendants  must  be  considered  in  law  as  making, 
during  every  instant  of  time  their  letter  was  travelling,  the  same  iden- 
tical ofler  to  the  i)laintifrs  ;  and  then  the  contract  is  completed  by  the 
acceptance  of  it  by  the  latter." 

These  positions  are  questioned,  if  not  diiectly  controverted,  by  Best, 
C.  J.,  in  the  case  of  Routledge  v.  Grant,  4  Bing.  653.  He  says,  '•  If 
they  are  to  be  considered  as  making  the  offer  till  it  is  accepted,  the 
other  may  say,  '  Make  no  further  offer,  because  I  shall  not  accept  it ; ' 
and  to  place  them  on  an  equal  footing,  the  party  who  offers  should  have 
the  power  of  retracting,  as  well  as  the  other  of  rejecting  ;  therefore  I 
cannot  bring  myself  to  admit  that  a  man  is  bound  when  he  says,  '  I  will 
sell  you  goods  on  certain  terms,  receiving  your  answer  in  course  of 
post.'  "  He  does  not,  however,  profess  to  overrule  the  case  of  Adamj 
u.  Lindsell ;  nor  was  it  necessary,  as  there  were  other  gi'ounds  on  wh)<;k 
the  rule  in  Routledge  v.  Grant  wa*  discharged. 


40  AVEIIILL   V.    HEDGE.  [CHAP.   L 

In  the  case  of  M'Culloch  v.  The  Eagle  Ins.  Co.,  1  Pick.  281,  decided 
by  the  Supreme  Court  of  Massachusetts,  the  case  of  Cooke  v.  Oxley  ia 
cited  with  approbation  and  followed.  And  the  decision  there  cannot 
easily  be  reconciled  to  the  doctrines  advanced  in  Adams  v.  Lindsell. 
For  it  was  there  held,  that  an  ofler  to  insure  the  plaintiff's  vessel  at  a 
given  premium,  comuuinicated  by  mail  and  promptly  accepted,  was  not 
binding  on  the  defendants,  they  having  in  the  mean  time  written  a  letter 
retracting  their  offer.  This  decision  proceeded  upon  the  ground  that  the 
treaty  was  open  until  the  plaintiff"s  letter  notifying  his  acceptance,  was 
received ;  and  that,  in  the  mean  time,  the  defendants  have  a  right  to 
withdraw  their  offer.  l*arker,  C.  J.,  in  giving  the  opinion  of  the  Court, 
said,  "  The  otter  did  not  bind  the  plaintiff  until  it  was  accepted  ;  and  it 
could  not  be  accepted,  to  the  knowledge  of  the  defendants,  until  the 
letter  announcing  the  acceptance  was  received,  or  at  most  until  the 
regular  time  for  its  arrival  by  mail  had  elapsed." 

The  case  of  Adams  v.  Lindsell  is  regarded  as  an  authority,  and  foJ 
lowed,  by  the  Supreme  Court  of  Errors  of  the  State  of  New  York,  ii 
Mactier  v.  Frith,  6  Wend.  103.  And  there  the  doctrine  is  asserted. 
that  the  acceptance  of  an  offer,  made  through  the  medium  of  a  letter, 
binds  the  bargain,  if  the  part}'  making  the  offer  has  not  in  the  mean 
time  revoked  it.  And  the  rule  adopted  in  Massachusetts,  that  regards 
the  contract  as  incomplete  until  the  party  making  the  offer  is  notified 
of  the  acceptance,  is  rejected.  The  doctrine  of  Adams  v.  Lindsell  and 
of  Mactier  v.  Frith  may  perhaps  be  considered  as  receiving  the  implied 
sanction  of  the  Supreme  Court  of  the  United  States,  in  the  case  of 
Eliason  v.  Henshaw,  4  Wheat.  225  ;  although  a  decision  upon  the  pre- 
cise point  was  unnecessary,  the  offer  there  not  having  been  accepted 
according  to  the  terms  on  which  it  was  made. 

We  do  not  feel  that  the  task  is  imposed  upon  us  of  reconciling  these 
conflicting  authorities,  if  indeed  they  do  conflict ;  for  within  the  prin- 
ciple of  none  of  them  can  the  claim  of  the  plaintiffs  be  established. 

In  Mactier  v.  Frith,  which  goes  as  far  as  any  of  the  cases  on  this 
subject,  the  rule  is  laid  down,  that  the  offer  continues  until  the  letter 
containing  it  is  received,  and  the  part}'  has  had  a  fair  opportunity  to 
answer  it.  And  it  is  further  said,  that  a  letter  written  would  not  be 
an  acceptance,  so  long  as  it  remained  in  the  possession  or  under  the 
control  of  the  writer.  An  offer  then,  made  through  a  letter,  is  not 
continued  be3'ond  the  time  that  the  part}'  has  a  "  fair  opportunity"  to 
answer  it.  This  is  substantially  the  doctrine  of  the  charge.  And  it  is 
not  only  highly  reasonable,  but  is  supported  by  all  the  analogies  of  the 
law.  Once  establish  the  principle  that  a  party  to  whom  an  offer  is 
made  may  hold  it  under  consideration  more  than  forty-eight  hours, 
watching  in  the  mean  time  the  fluctuations  of  the  market,  and  then 
bind  the  other  party  by  his  acceptance,  and  it  is  believed  that  you 
create  a  siiock  throughout  the  commercial  community,  utterly  destruc- 
tive of  all  mercantile  confidence.  No  offers  would  be  made  by  letter. 
It  would  be  unsafe  to  make  them. 


SECT.   I.]       BYRNE  &   CO.   V.   VAN  TIENHOVEN  &   CO.  41 

It  is  only  necessar}'  to  apply  these  principles  to  the  case  before  vis 
and  their  application  is  exceedingly  obvious.  The  proposal  of  thft_ 
defendant,  which  had  alreadvjbeen  several  days  before  the  plaintitfs. 
W.as_renewed  early  on  the  afternoon  of  the  18th^  They  show  no  act 
done  by  them  signifying  their  acceptance,  until  the  evening  of  the  20th. 
Was  this  within  a  reasonable  time  ?  Was  this  the  first  fail-  opportunity 
of  manifesting  their  acceptance?  We  think  this  can  hardly  be  claimed. 
Had  the  defendant  had  an  agent  in  Hartford,  through  whom  the  otfer 
was  made,  might  the  plaintiffs  thus  have  delaj'ed  the  communication 
of  their  acceptance  to  him?  This  would  not  be  pretended.  And  can 
it  vary  the  principle,  that  the  offer,  instead  of  being  thus  made,  was 
made  through  the  agencj'  of  the  post-office?  Had  the  offer  of  the  de- 
fendant been  promptly  accepted,  information  of  the  acceptance  would 
have  reached  the  defendant  on  the  evening  of  the  20th,  in  due  course 
of  mail.  He  waited  until  the  22d  ;  and  hearing  nothing  from  the  plain- 
tiffs, he  then  viiluall}-  retracted  his  offer,  b}-  making  such  arrangements 
as  made  it  impossible  for  him  to  fill  their  order.  We  think  he  was  full}' 
justified  in  so  doing ;  and  that  upon  every  sound  principle  the  rule  in 
this  case  must  be  discharged. 

In  this  opinion  the  other  Judges  concurred. 

New  trial  not  to  be  granted^ 


BYRNE   &   CO.   V.   LEON  VAN   TIENHOVEN    &   CO. 
In  the  Cosimon  Pleas  Division,  March  6,   1880. 

[Reported  in  5  Common  Pleas  Division,  344.] 

LiNDLEY,  J.^  [This  was  an  action  for  the  recovery  of  damages  for 
the  non-delivery  by  the  defendants  to  the  plaintiffs  of  1000  boxes  of 
tinplates  pursuant  to  an  alleged  contract. 

The  defendants  carried  on  business  at  Cardiff  and  the  plaintiffs  at 

1  In  Kempner  v.  Cohn,  47  Ark.  519,  it  was  held  that  in  the  case  of  an  offer  to  sell 
real  estate,  a  delay  of  five  days  in  accepting  was  not  as  matter  of  law  unreasonable. 
In  Ortman  v.  Weaver,  11  Fed.  Rep.  358,  a  delay  of  two  weeks  in  accepting  such  an 
offer  was  held  unreasonable.  In  Hargadine,  McKittrick  Co.  v.  Reynolds,  64  Fed.  Rep. 
560,  a  delay  of  six  days  in  acce])tiug  an  offer  to  sell  cotton  manufactured  goods  was 
held  unreasonable.  In  Minnesota  Oil  Co.  v.  Collier  Lead  Co.,  4  Dill.  431,  it  was  held 
that  in  the  case  of  an  offer  by  telegram  to  sell  oil,  then  the  subject  of  rapid  fluctuation 
in  price,  a  telegraphic  reply  after  twenty-four  hours'  delay  was  too  late. 

See  also  Ramsgate  Hotel  Co.  v.  Montefiore,  L.  R.  1  Ex.  \09  ;  Re  Bowron,  L.  R.  5  Eq. 
428,  L.  R.  3  Ch.  592  ;  De  Witt  v.  Chicago,  &c.  Ry.  Co.,  41  Fed.  Rep.  484 ;  Ferrier  i-. 
Storer,  63  la.  484;  Trounstine  v.  Sellers,  35  Kan.  44";  Park  v.  Whitney,  US  Mass. 
278  ;  Stone  v.  Harmon,  31  Minn.  512  ;  Hallock  v.  Insurance  Co.,  2  Dutch.  268  ;  Mizell 
V.  Burnett,  4  Jones,  L.  249  ;  Baker  v.  Holt,  56  Wis.  100  ;  Sherley  v.  Peehl,  84  Wis.  46. 

2  A  brief  statement  of  facts  has  been  substituted  for  the  statement  of  the  court. 
Only  so  much  of  the  opinion  is  given  as  relates  to  the  question  of  revocation. 


42 


BYKNE  &   CO.   V.   VAN  TIENHOVEN  &   CO.        [CHAP.   I. 


New  York,  and  it  takes  ten  or  eleven  days  for  a  letter  posted  at  either 
place  to  reach  the  other.  The  defendants  on  October  1  offered  to  sell 
to  the  plaintiffs  1000  boxes  of  tinplates  at  15s.  6d.  a  box  "subject 
to  your  cable  on  or  before  the  15th  Inst,  here."  The  plaintiffs  sent' 
a  telegram  on  October  11th  accepting  this  offer,  and  confirmed  it  by 
letter  dated  October  15th.  On  October  8th  the  defendants  wrote 
a  letter  withdrawing  their  offer.  This  letter  reached  the  plaintiffs 
on  October  20th,  but  they  claimed  the  revocation  was  ineffectual  and 
brought  this  action.] 

T^here  is  no  doubt  that  an^  offpr^^an  hp  withdrawn  before  it  is 
accested,  and  it.  is  immaterial  whethei-  the  offer  Is  _expressed^tobe 
open  for  acceptance  for  a  given  time  or  not  Routledge  w.  Grant, 
4  Bing.  653.  For  the  decision  of  the  present  case,  however,  it  is  neces- 
sary to  consider  two  other  questions,  viz. :  1.  Whether  a  withdrawal 
of  an  offer  has  any  effect  until  it  is  communicated  to  the  person  to 
whom  the  offer  has  been  sent?  2.  Whether  posting  a  letter  of  with- 
drawal is  a  communication  to  the  person  to  whom  the  letter  is  sent? 

It  is  curious  that  neither  of  these  questions  appears  to  have  been 
actually  decided  in  this  country.  As  regards  the  first  question,  I 
am  aware  that  Fothier  and  some  other  writers  of  celebrity  are  of 
opinion  thaUJlfirejcan  be  no  cojgtract-oljgtlL offer  isjwithdrawn  before 
itjs^acpp.ptp.d,  althxxuglL-the-^wi4Mi-awal  iA  not  communicated  to  the 
person  to  whom  the_Qff£r_ha3  been  made.  *  The  reason  ~for~ this 
opinion  is  that  there  is  not  in  fact  any  such  consent  by  both  parties 
as  is  essential  to  constitute  a  contract  between  them.  Against  this 
view,  however,  it  has  been  urged  that  a  state  of  mind  not  notified 
cannot  be  regarded  in  dealings  between  man  and  man;  and  that  an 
uncommunicated  revocation  is  for  all  practical  purposes  and  in  point 
of  law  no  revocation  at  all.  This  is  the  view  taken  in  the  United 
States:  see  Tayloe  v.  Merchants  Fire  Insurance  Co.,  9  How.  Sup.  Ct. 
Rep.  390,  cited  in  Benjamin  on  Sales,  pp.  56-58,  and  it  is  adopted  by 
Mr.  Benjamin.  The  same  view  is  taken  by  Mr.  Pollock  in  his  excel- 
lent work  on  Principles  of  Contract,  ed.  ii.,  p.  10,  and  by  Mr.  Leake 
in  his  Digest  of  the  Law  of  Contracts,  p.  43.  This  view,  moreover, 
appears  to  me  much  more  in  accordance  with  the  general  principles  of 
English  law  than  the  view  maintained  by  Pothier.  I  pass,  therefore, 
to  the  next  question,  viz.,  whether  posting  the  letter  of  revocation 
was  a  sufficient  communication  of  it  to  the  plaintiff.  The  offer  was 
posted  on  the  1st  of  October,  the  withdrawal  was  posted  on  the  8th, 
and  did  not  reach  the  plaintiff  until  after  he  had  posted  his  letter  of 
the  11th,  accepting  the  offer.  It  may  be  taken  as  now  settled  that 
where  an  offer  is  made  and  accepted  by  letters  sent  through  the  post, 
the  contract  is  completed  the  moment  the  letter  accepting  the  offer 
is  posted:  Harris'  Case,  Law  Rep.  7  Ch.  587;  Dunlop  v.  Higgins, 
1  H.  L.  381,  even  although  it  never  reaches  its  destination.  When, 
however,  these  authorities  are  looked  at,  it  will  be  seen  that  they  are 
based  upon  the  principle  that  the  writer  of  the  offer  has  expressly 


SECT.    I.]        BYRNE   &    CO.    V.    VAN   TIENHOVEN   &    CO.  43 

or  impliedly  assented  to  treat  an  answer  to  him  by  a  letter  du;y 
posted  as  a  sufficient  acceptance  and  notification  to  himself,  or,  in 
other  words,  he  has  made  the  post-office  his  agent  to  receive  the 
acceptance  and  notification  of  it.  But  this  principle  appears  to  me 
to  be  inapplicable  to  the  case  of  the  withdrawal  of  an  offer.  la 
this  particular  case  I  can  find  no  evidence  of  any  authority  in  fact 
given  by  the  plaintiffs  to  the  defendants  to  notify  a  withdrawal  of 
their  offer  by  merely  posting  a  letter;  and  there  is  no  legal  principle 
or  decision  which  compels  me  to  hold,  contrary  to  the  fact,  that  the 
letter  of  the  8th  of  October  is  to  be  treated  as  communicated  to  the 
plaintiff  on  that  day  or  on  any  day  before  the  20th,  when  the  letter 
reached  them.  But  before  that  letter  had  reachpd  thp  plajptiffgjlll^ 
had  accepted  the  offer,  both  by  telegram  and  by  post;  and  thp.y 
had  themselves  resold  the  tinplates_aL  a  profit.  In  my  opinion  the 
withdrawal  by  the  defendants  on  the  8th  of^  October  of  their  offer  of  ' 
the  Ist  was  inoperatiYfi^ani, a  complete  contract  binding  on  both 
garties  .was  eateredj^nto  on  the  11th  of  OpIt^pt,  tyhpn  thp.  pl.aintjfFg 
accepted  the  offer  of  the  1st,  which  they  had  no  reason  to  suppose 
had  beejn  withdrawn.  Before  leaving  this  part  of  the  case  it  may  be 
as  well  to  point  out  the  extreme  injustice  and  inconvenience  which 
any  other  conclusion  would  produce.  If  the  defendants'  contention 
were  to  prevail  no  person  who  had  received  an  offer  by  post  and  had 
accepted  it  would  know  his  position  until  he  had  waited  such  a  time 
as  to  be  quite  sure  that  a  letter  withdrawing  the  offer  had  not  been 
posted  before  his  acceptance  of  it.  It  appears  to  me  that  both  legal 
principles  and  practical  convenience  require  that  a  person  who  has 
accepted  an  offer  not  known  to  him  to  have  been  revoked,  shall  be 
in  a  position  safely  to  act  upon  the  footing  thatjthe  offer  and  accept- 
ance  constitute_a^contra.cL binding  on  both  parties.'  ~     ~ 

1  Stevenson  v.  McLean,  5  Q.  B.  D.  346  ;  Henthorn  r.  Fraser,  [1892]  2  Ch.  27 ;  Re 
London  &  Northern  Bank,  [1900]  1  Ch.  220  ;  Tayloe  v.  Merchants'  Fire  Ins.  Co.,  9  How. 
390 ;  Patrick  v.  Bowman,  149  U.  S.  411,  424  ;  The  Palo  Alto,  2  Ware,  343  ;  Kempner 
r.  Cohn,  47  Ark.  519;  Sherwin  «.  Nat.  Cash  Register  Co.,  5  Col.  App.  162; 
Wheat  V.  Cross,  31  Md.  99;  Brauer  y.  Shaw,  168  Mass.  198,  ace.  The  contrary- 
implications  in  Cooke  v.  Oxley,  3  T.  R.  e.W  ;  Adams  v.  Lindsell,  1  B.  &  Aid.  681  ; 
Head  v.  Diggon,  3  Man.  &  R.  97  ;  Hebb's  Case,  L.  R.  4  Eq.  9,  must  be  regarded  as 
overruled. 

In  Patrick  v.  Bowman,  149  U.  S.  411,  the  Court,  after  holding  that  a  revocation  of 
an  offer  was  ineffectual  if  not  received  before  acceptance,  said  (at  p.  424)  :  "  There  is 
indeed,  in  a  case  of  this  kind,  some  reason  for  urging  that  the  party  making  the  revo- 
cation should  be  estopped  to  claim  that  his  attempted  withdrawal  was  not  binding  upon 
himself  ;  but  this  could  not  be  done  without  infringing  upon  the  inexorable  rule  that 
one  party  to  a  contract  cannot  be  bound  unless  the  other  be  also,  notwithstanding  that 
the  principle  of  mutuality  thus  applied  may  enable  a  party  to  take  advantage  of  the 
invalidity  of  his  own  act." 


44  HYDE   V.    WRENCH.  [CHAP.    I. 

HYDE  r.  WRENCH. 
In  Chancery,   Deckmber  8,   1840. 

[Reported  in  3  Beavan,  334.) 

This  case  came  on  upon  general  demurrer  tc  a  bill  for  specific  per 
formance,  which  stated  to  the  etl'ect  .following  :  — 

The  defendant,  being  desirous  of  disposing  of  an  estate,  offered,  by 
his  agent,  to  sell  it  to  the  plaintiff  for  1,200/.,  which  the  plaintiff,  by  his 
agent,  declined ;  and  on  the  6th  of  June  the  defendant  wrote  to  his 
agent  as  follows :  "I  have  to  notice  the  refusal  of  ^^our  friend  to  give 
me  1,200/.  for  my  farm ;  I  will  only  make  one  more  offer,  which  I  shall 
not  alter  from;  that  is,  1,000/.  lodged  in  the  bank  until  Michaelmas, 
when  title  shall  be  made  clear  of  expenses,  land  tax,  &c.  I  expect  a 
repl}'  by  return,  as  I  have  another  application."  This  letter  was  for- 
warded to  the  plaintiff's  agent,  who  immediately  called  on  the  defend- 
ant ;  and,  previously  to  accepting  the  offer,  offered  to  give  the  defendant 
950/.  for  the  purchase  of  the  farm,  but  the  defendant  wished  to  have  a 
few  days  to  consider. 

On  the  11th  of  June,  the  defendant  wrote  to  the  plaintiff's  agent  as 
follows  :  "  I  have  written  to  my  tenant  for  an  answer  to  certain  inquiries, 
and,  the  instant  I  receive  his  reply,  will  communicate  with  j'ou,  and 
endeavor  to  conclude  the  prospective  purchase  of  my  farm.  I  assui-e 
you  I  am  not  treating  with  any  other  person  about  said  purchase." 

The  defendant  afterwards  promised  he  would  give  an  answer  about 
accepting  the  950/.  for  the  purchase  on  the  26th  of  June  ;  and  on  the 
27th  he  wrote  to  the  plaintiff's  agent,  stating  he  was  sorry  he  could  not 
feel  disposed  to  accept  his  offer  for  his  farm  at  Luddenham  at  present. 

This  letter  being  received  on  the  29th  of  June,  the  plaintiff's  agent 
on  that  day  wrote  to  the  defendant  as  follows  :  "I  beg  to  acknowledge 
the  receipt  of  your  letter  of  the  27th  instant,  informing  me  that  j'ou 
are  not  disposed  to  accept  the  sum  of  950/.  for  your  farm  at  Luddenham. 
This  being  the  case,  I  at  once  agree  to  the  terms  on  which  you  offered 
the  farm;  viz.,  1,000/.  through  your  tenant,  Mr.  Kent,  by  your  letter 
of  the  6th  instant.  I  shall  be  obliged  by  your  instructing  3'our  solicitoi 
to  communicate  with  me  without  delay,  as  to  the  title,  for  the  reason 
which  I  mentioned  to  j'ou." 

The  bill  stated,  that  the  defendant  "  returned  a  verbal  answer  to  the 
last-mentioned  letter,  to  the  effect  he  would  see  his  solicitor  thereon  ;  " 
and  it  charged  that  the  defendant's  offer  for  sale  had  not  been  with- 
drawn previous  to  its  acceptance. 

To  this  bOl,  filed  b}'  the  alleged  purchaser  for  a  specific  performance, 
the  defendant  filed  a  general  demurrer. 

Mr.  Kindersley  and  Mr.  Keene,  in  support  of  the  demurrer.  To  con- 
stitute a  valid  agreement  there  must  be  a  simple   acceptance  of  th« 


SECT.  I.]     STEVENSON,  JAQUES  &  CO.  V.   McLEAN.  46 

terms  proposed.  Holland  v.  Eyre.*  The  plaintiff,  instead  of  accepting 
the  alleged  proposal  for  sale  for  1,000/.  oa  the  6th  of  June,  rejected  it, 
and  made  a  counter  proposal ;  this  put  an  end  to  the  defendant's  offer, 
and  left  the  proposal  of  the  plaintiff  alone  under  discussion  ;  that  has 
never  been  accepted,  and  the  plaintiff  could  not,  without  the  concur- 
rence of  the  defendant,  revive  the  defendant's  original  proposal. 

Mr.  Pemberton  and  Mr.  Freeling,  contra.  So  long  as  the  offer  of  the 
defendant  subsisted,  it  was  competent  to  the  plaintiff  to  accept  it ;  the 
bill  charges  that  the  defendant's  offer  had  not  been  withdrawn  previous 
to  its  acceptance  by  the  plaintiff;  there  therefore  exists  a  valid  sub- 
sisting contract.     Kennedy  v.  Lee,^  Johnson  v.  King,'  were  cited. 

The  Master  of  the  Rolls 

Under  the  circumstances  stated  m  this  bill,  Ljthink  there  exists  no 
valid  binding  contract  between  the  parties  for  the  purchase  of  the  prop- 
erty.  The  defendant  offered  to  sell  it  for  1,000/.,  and  if  that  had  beeB 
at  once  uncondilionally  acceptt'd.  there  would  undoubtedly  have  been  a 
perfect  binding  contract;  instead  of  that,  the  plaintiff  made  an  offer  of 
his  own  to  purchase  the  propert}'  for  950/.,  and  he  thereby  rejected  the 
offer  previously  made  by  the  defendant.  I  think  that  it  was  not  after- 
wards competent  for  him  to  revive  the  proposal  of  the  defendant,  by 
tendering  an  acceptance  of  it ;  *  and  that  therefore  there  exists  no  obli- 
gation of  any  sort  between  the  parties  ;  the  demurrer  must  be  allowed.^ 


STEVENSON,  JAQUES   &   CO.    v.  McLEAN. 
In  the  Queen's  Bench  Division,  Mat  25,  1880. 

[Reported  in  5  Queen's  Bench  Division,  346.] 

Lush,  J.  This  is  an  action  for  non-delivery  of  a  quantity  of  iron 
which  it  was  alleged  the  defendant  contracted  to  sell  to  the  plaintiffs 
at  405.  per  ton,  nett  cash.  The  trial  took  place  before  me  at  the  last 
assizes  at  Leeds,  when  a  verdict  was  given  for  the  plaintiffs  for 
1900/.,  subject  to  further  consideration  on  the  question  ^^heth^r, 
ujui^  the  circumstances,  the  correspondence  between  th^^  pnrijpa — 
snaounted  to  a  contract,  ancTsubject  also,  if  the  verdict  should  stand, 
to  a  reference,  it'  require?r~by  the  defendant,  to  ascertain  the  amount 
of  damages.  The  question  of  law  was  argued  before  me  on  the  7th 
of  May  last. 

1  2  Sim.  &  St.  194.  «  3  Mer.  454. 

8  2  Biug.  270.  *  Lord  Langdale.  —  Ed. 

5  Natioual  Bank  i-.  Hall,  101  U.  S.  43,  50;  Minneapolis,  &c.  Ry.  Co.  v.  Columbus 
Rolling  Mills,  119  U.  S.  149;  Ortman  v.  Weaver,  II  Fed.  Rep.  358;  W.  &  H.  M. 
Goulding  Co.  v.  Hammond,  54  Fed.  Rep.  639  (C.  C.  A.)  ;  Baker  v.  Johnson  Co.,  37  la. 
186,  189  ;  Cartmel  v.  Newton,  79  Ind.  1,  8;  Fox  v.  Turner,  1  111.  App.  153  ;  Egger  v. 
Nesbitt,  122  Mo.  667;  Harris  v.  Scott,  67  N.  H.  437  ;  Russell  v.  Falls  Mfg.  Co.,  106 
Wis.  329,  ace. 


46  STEVENSON,   JAQUES   &   CO.   V.   McLEAN.         [CHAP.    I. 

The  plaintiffs  are  makers  of  iron,  and  iron  merchants  at  Middles- 
borough.  The  defendant  being  possessed  of  warrants  for  iron, 
which  he  had  originally  bought  of  the  plaintiffs,  wrote  on  the  24th 
of  September  to  the  plaintiffs  from  London,  where  he  carries  on  his 
business:  "  I  see  that  No.  3  has  been  sold  for  immediate  delivery  at 
395.,  which  means  a  higher  price  for  warrants.  Could  you  get  me 
an  offer  for  the  whole  or  part  of  my  warrants?  I  have  3800  tons, 
and  the  brands  you  know." 

On  the  26th  one  of  the  plaintiffs  wrote  from  Liverpool:  "Your 
letter  has  followed  me  here.  The  pig-iron  trade  is  at  present  very 
excited,  and  it  is  difficult  to  decide  whether  prices  will  be  maintained 
or  fall  as  suddenly  as  they  have  advanced.  Sales  are  being  made 
freely  for  forward  delivery  chiefly,  but  not  in  warrants.  It  may, 
however,  be  found  advisable  to  sell  the  warrants  as  maker's  iron.  I 
would  recommend  you  to  fix  your  price,  and  if  you  will  write  me 
your  limit  to  Middlesborough,  I  shall  probably  be  able  to  wire  you 
something  definite  on  Monday."  This  letter  was  crossed  by  a  letter 
written  on  the  same  day  by  the  clerk  of  one  Fossick,  the  defendant's 
broker  in  London,  and  which  was  in  these  terms :  — 

"  Referring  to  R.  A.  McLean's  letter  to  you  re  warrants,  I  have  seen  him 
again  to-day,  and  he  considers  39a'.  too  low  for  same.  At  40«.  he  says  he  would 
consider  an  offer.  However,  I  shall  be  obliged  by  your  kindly  wiring  me,  if 
possible,  your  best  offer  for  all  or  part  of  the  warrants  he  has  to  dispose  of." 

On  the  27th  (Saturday)  the  plaintiffs  sent  to  Fossick  the  following 
telegram :  — 

"  Cannot  make  an  offer  to-day ;  warrants  rather  easier.  Several  sellers 
think  might  get  39s.  6d.  if  you  could  wire  firm  offer  subject  reply  Tuesday 
noon." 

In  answer  to  this  Fossick  wrote  on  the  same  day: 

"  Your  telegram  duly  to  hand  re  warrants.  I  have  seen  Mr.  McLean,  but 
he  is  not  inclined  to  make  a  firm  offer.  I  do  not  think  he  is  likely  to  sell  at 
39s.  6rf.,  but  will  probably  prefer  to  wait.  Please  let  me  know  immediately 
you  get  any  likely  offer." 

On  the  same  day  the  defendant,  who  had  then  received  the  Liver- 
pool letter  of  the  26th,  wrote  himself  to  the  plaintiffs  as  follows:  — 

"  Mr.  Fossick's  clerk  showed  me  a  telegram  from  him  yesterday  mention- 
ing 39.'*.  for  No.  3  as  present  price,  40?.  for  forward  delivery.  I  instructed  the 
clerk  to  wire  you  that  I  would  now  sell  for  40s.,  nett  cash,  open  till  Monday." 

No  such  telegram  was  sent  by  Fossick's  clerk. 

The  plaintiffs  were  thus  on  the  28th  (Sunday)  in  possession  of 
both  lettei-s,  the  one  from  Fossick  stating  that  the  defendant  was  not 
inclined  to  make  a  firm  offer;  and  the  other  from  the  defendant  him- 
self, to  the  effect  that  he  would  sell  for  405.,  nett  cash,  and  would 


SECT.   I.]  STEVENSON,   JAQUES   &   CO.   V.   McLEAN.  47 

hold  it  open  all  Monday.     This  it  was  admitted  must  have  been  the 
meaning  of  "open  till  Monday," 

On  the  Monday  morning,  at  9.42,  the  plaintiffs  telegraphed  to  the 
defendant: —  n 

/     "  Please  wire  whether  you  would  accept  forty  for  delivery  over  two  months.    ^  ja^^ 
i    or  if  not,  longest  limit  you  would  give."  /    "v!l^ 

This  telegram  was  received  at  the  office  at  Moorgate  at  10.1  a.m.,  ^!^ 

and  was  delivered  at  the  defendant's  office  in  the  Old  Jewry  shortly 
afterwards. 

No  answer  to  this  telegram  was  sent  by  the  defendant,  but  after 
its  receipt  he  sold  the  warrants,  through  Fossick,  for  40s.,  nett  cash, 
and  at  1.25  sent  off  a  telegram  to  the  plaintiffs:  — 

'*  Have  sold  all  my  warrants  here  for  forty  nett  to-day." 

This  telegram  reached  Middlesborough  at  1.46,  and  was  delivered 
in  due  course. 

Before  its  arrival  at  Middlesborough,  however,  and  at  1.34,  the 
plaintiffs  telegraphed  to  defendant:  — 

"  Have  secured  your  price  for  payment  next  Monday  —  write  you  fully  by^ 
post." 

By  the  usage  of  the  iron  market  at  Middlesborough,  contracts  made 
on  a  Monday  for  cash  are  payable  on  the  following  Monday. 

At  2.6  on  the  same  day,  after  receipt  of  the  defendant's  telegram 
announcing  the  sale  through  Fossick,  the  plaintiffs  telegraphed  : 

"  Have  your  telegram  following  our  advice  to  you  of  sale,  per  your  instruc- 
tions, which  we  cannot  revoke,  but  rely  upou  your  carrying  out." 

The  defendant  replied : 

"  Your  two  telegrams  received,  but  your  sale  was  too  late ;  your  sale  was 
not  per  my  instructions." 

And  to  this  the  plaintiffs  rejoined :  — 

"  Have  sold  your  warrants  on  terms  stated  in  your  letter  of  twenty-seventh." 

The  iron  was  sold  by  plaintiffs  to  one  "Walker  at  4 Is.  M.^  and  the 
contract  note  was  signed  before  1  o'clock  on  Monday.  The  price  of 
i'ron  rapidly  rose,  and  the  plaintiffs  had  to  buy  in  fulfilment  of  their 
contract  at  a  considerable  advance  on  40s. 

The  only  question  of  fact  raised  at  the  trial  was,  whether  the  rela- 
tion between  the  parties  was  that  of  principal  and  agent,  or  that  of 
buyer  and  seller.  The  jury  found  it  was  that  of  buyer  and  seller, 
and  no  objection  has  been  taken  to  this  finding. 

Two  objections  were  relied  on  by  the  defendant:  first,  it  was  con- 
tended that  the  telegram  sent  by  the  plaintiffs  on  the  Monday  morn- 
ing was  a  rejection  of  the  defendant's  offer  and  a  new  proposal  on 


48  STEVENSON,   JAQUES   &   CO.    V.    McLEAN.  [CHAP.   I. 

the  plaintiffs'  part,  and  that  the  defendant  had  therefore  a  right  to 
regard  it  as  putting  an  end  to  the  original  negotiation. 

Looking  at  the  form  of  the  telegram,  the  time  when  it  was  sent,  and 
the  state  of  the  iron  market,  I  cannot  think  this  is  its  fair  meaning. 
The  plaintiff  Stevenson  said  he  meant  it  only  as  an  inquiry,  expect- 
ing an  answer  for  his  guidance,  and  this,  I  think,  is  the  sense  in 
which  the  defendant  ought  to  have  regarded  it. 

It  is  apparent  throughout  the  correspondence,  that  the  plaintiffs 
did  not  contemplate  buying  the  iron  on  speculation,  but  that  their 
acceptance  of  the  defendant's  offer  depended  on  their  finding  some 
one  to  take  the  warrants  off  their  hands.  All  parties  knew  that  the 
market  was  in  an  unsettled  state,  and  that  no  one  could  predict  at  the 
early  hour  when  the  telegram  was  sent  how  the  prices  would  range 
during  the  day.  It  was  reasonable  that,  under  these  circumstances, 
they  should  desire  to  know  before  business  began  whether  they  were 
to  be  at  liberty  in  case  of  need  to  make  any  and  what  concession  as 
to  the  time  or  times  of  delivery,  which  would  be  the  time  or  times 
of  payment,  or  whether  the  defendant  was  determined  to  adhere  to 
the  terms  of  his  letter;  and  it  was  highly  unreasonable  that  the 
plaintiffs  should  have  intended  to  close  the  negotiation  while  it  was 
uncertain  whether  they  could  find  a  buyer  or  not,  having  the  whole 
of  the  business  hours  of  the  day  to  look  for  one.  Then,  again,  the 
form  of  the  telegram  is  one  of  inquiry.  It  is  not  "I  offer  fortyjor 
delivery  over  two  months,"  which  would  have  likened  the  case  to 
Hyde  v.  Wrench,  3  Beav.  334,  where  one  party  offered  his  estate  for 
lOOOZ.,  and  the  other  answered  by  offering  950Z.  Lord  Langdale, 
in  that  case,  held  that  after  the  2501.  had  been  refused,  the  party 
offering  it  could  not,  by  them  agreeing  to  the  original  proposal,  claim 
the  estate,  for  the  negotiation  was  at  an  end  by  the  refusal  of  his 
counter  proposal.  Here  there  is  no  counter  proposal.  The  words 
are,  "Please  wire  whether  you  would  accept  forty  for  delivery  over 
two  months,  or,  if  not,  the  longest  limit  you  would  give."  There 
is  nothing  specific  by  way  of  offer  or  rejection,  but  a  mere  inquiry, 
which  should  have  been  answered  and  not  treated  as  a  rejection  of 
the  offer.     This  ground  of  objection  therefore  fails. 

The  remaining  objection  was  one  founded  on  a  well-known  passage 
in  Pothier,  which  has  been  supposed  to  have  been  sanctioned  by  the 
Court  of  Queen's  Bench  in  Cooke  v.  Oxley,  3  T.  R.  653,  that  in  order 
to  constitute  a  contract  there  must  be  the  assent  or  concurrence  of 
the  two  minds  at  the  moment  when  the  offer  is  accepted ;  and  that  if, 
when  an  offer  is  made,  and  time  is  given  to  the  other  party  to  deter- 
mine whether  he  will  accept  or  reject  it,  the  proposer  changes  his 
mind  before  the  time  arrives,  although  no  notice  of  the  withdrawal 
has  been  given  to  the  other  party,  the  option  of  accepting  it  is  gone. 
The  case  of  Cooke  v.  Oxley,  3  T.  R.  653,  does  not  appear  to  me  to 
warrant  the  inference  which  has  been  drawn  from  it,  or  the  supposi- 
tion that  the  judges  ever  intended  to  lay  down  such  a  doctrine.  The 
declaration  stated  a  proposal  by  the  defendant  to  sell  to  the  plaintiff 


SECT.  I.]    STEVENSON,  JAQUES  &  CO.  V.   McLEAN.  49 

266  hogsheads  of  sugar  at  a  specific  price,  that  the  plaintiff  desired 
time  to  agree  to,  or  dissent  from,  the  proposal  till  4  in  the  afternoon, 
and  that  defendant  agreed  to  give  the  time,  and  promised  to  sell 
and  deliver  if  the  plaintiff  would  agree  to  purchase  and  give  notice 
thereof  before  4  o'clock.  The  Court  arrested  the  judgment  on  the 
ground  that  there  was  no  consideration  for  the  defendant's  agree- 
ment to  wait  till  4  o'clock,  and  that  the  alleged  promise  to  wait  was 
nudum  pactu7)i. 

All  that  the  judgment  affirms  is,  that  a  party  who  gives  time  to 
another  to  accept  or  reject  a  proposal  is  not  bound  to  wait  till  the 
time  expires.  And  this  is  perfectly  consistent  with  legal  principles 
and  with  subsequent  authorities,  which  have  been  supposed  to  con- 
flict with  Cooke  v.  Oxley,  3  T.  R.  653.  It  is  clear  that  a  unilateral 
promise  is  not  binding,  and  that  if  the  person  who  makes  an  offer 
revokes  it  before  it  has  been  accepted,  which  he  is  at  liberty  to  do, 
the  negotiation  is  at  an  end:  see  Routledge  v.  Grant,  4  Bing.  653. 
But  in  the  absence  of  an  intermediate  revocation,  a  party  who  makes 
a  proposal  by  letter  to  another  is  considered  as  repeating  the  offer 
every  instant  of  time  till  the  letter  has  reached  its  destination  and 
the  correspondent  has  had  a  reasonable  time  to  answer  it:  Adams  v. 
Lindsell,  1  B.  &  A.  681.  "  Common  sense  tells  us,"  said  Lord  Cot- 
tenham,  in  Dunlop  v.  Higgins,  1  H.  L.  C.  381,  "  that  transactions 
cannot  go  on  without  such  a  rule."  It  cannot  make  any  difference 
whether  the  negotiation  is  carried  on  by  post,  or  by  telegraph,  or  by 
oral  message.  If  the  offer  is  not  retracted,  it  is  in  force  as  a  con- 
tinuing offer  till  the  time  for  accepting  or  rejecting  it  has  arrived. 
But  if  it  is  retracted,  there  is  an  end  of  the  proposal.  Cooke  v. 
Oxley,  3  T.  R.  653,  if  decided  the  other  way,  would  have  negatived 
the  right  of  the  proposing  party  to  revoke  his  offer. 

Taking  this  to  be  the  effect  of  the  decision  in  Cooke  v.  Oxley, 
3  T.  R.  653,  the  doctrine  of  Pothier  before  adverted  to,  which  is 
undoubtedly  contrary  to  the  spirit  of  English  law,  has  never  been 
affirmed  in  our  Courts.  Singularly  enough,  the  very  reasonable 
proposition  that  a  rev^jjiation  is  nothing  till  it  has  been  communi- 
cated to  the  other  party,  has  not,  until  recently,  been  laid  down,  no 
case  having  apparently  arisen  to  call  for  a  decision  upon  the  point. 
In  America  it  was  decided  some  years  ago  that  "  an  offer  cannot  be 
withdrawn  unless  the  withdrawal  reaches  the  party  to  whom  it  is 
addressed  before  his  letter  of  reply  announcing  the  acceptance  has 
been  transmitted:"  Tayloe  r.  Merchants'  Fire  Insurance  Co.,  9  How. 
Sup.  Court  Rep.  390;  and  in  Bryne  &  Co.  v.  Leon  Van  Tienhoven  & 
Co.,  49  L.  J.  (C.  P.)  316,  my  brother  Lindley,  in  an  elaborate  judg- 
ment, adopted  this  view,  and  held  that  an  uncorpmnnj^nted  revocation 
is.  for  all  practical  purpf^ppa  anrl  in  pn^nt  of  law,  no  rp.vof^ation  at  alI7 

It  follows,  that  as  no  notice  of  withdrawal  of  his  offer  to  sell  at 
40a-.,  nett  cash,  was  given  by  the  defendant  before  the  plaintiffs  sold 
to  Walker,  they  had  a  right  to  regard  it  as  a  continuing  offer,  and 

VOL.    I.  —  4 


60  DICKINSON   V.  DODDS.  [CHAP.   I. 

their  acceptance  of  it  made  the  contract,  which  was  initiated  by  the 
proposal,  complete  and  binding  on  both  parties. 

My  judgment  must,  therefore,  be  for  the  plaintiffs  for  1900Z.,  but 
this  amount  is  liable  to  be  reduced  by  an  arbitrator  to  be  agreed  on 
by  the  parties,  or,  if  they  cannot  agree  within  a  week,  to  be  nomi- 
nated by  me.  If  no  arbitrator  is  appointed,  or  if  the  amount  be  not 
reduced,  the  judgment  will  stand  for  1900/.  The  costs  of  the  arbitral 
tion  to  be  in  the  arbitrator's  discretion. 

Judgment  for  the  plaintiffs. 


DICKINSON  V.  DODDS. 

In  the  High  Court  of  Justice,  January  25,  26,  1876. 
In  the  Court  of  Appeal,  Maiich  31,  April  1,  1876. 

[Reported  in  2  Chancery  Division,  463.] 

On  Wednesday,  the  10th  of  June,  1874,  the  defendant  John  Dodds 
signed  and  delivered  to  the  plaintiff,  George  Dickinson,  a  memorandum, 
of  which  the  material  part  was  as  follows :  — 

I  hereby  agree  to  sell  to  Mr.  George  Dickinson  the  whole  of  the  dwelling- 
houses,  garden  ground,  stabling,  and  outbuildings  thereto  belonging,  situate 
*t  Croft,  belonging  to  me,  for  the  sum  of  800/.  As  witness  my  hand  this  tenth 
""^  of  June,  1874. 

^11.  (Signed)  John  Dodds. 

P.S.  —  This  offer  to  be  left  over  imtil  Friday,  9  o'clock,  a.m.  J.  D.  (the 
twelfth),  12th  June,  1874.  (Signed)  J.  Dodds. 

The  bill  alleged  that  Dodds  understood  and  intended  that  the 
plaintiff  should  have  until  Friday,  9  a.m.,  within  which  to  determine 
whether  he  would  or  would  not  purchase,  and  that  he  should  absolutely 
have,  until  that  time,  the  refusal  of  the  property  at  the  price  of  800/., 
and  that  the  plaintiff  in  fact  determined  to  accept  the  offer  on  the 
morning  of  Thursday,  the  11th  of  June,  but  did  not  at  once  signify  his 
acceptance  to  Dodds,  believing  that  he  had  the  power  to  accept  it  until 
9  A.M.  on  the  Friday. 

In  the  afternoon  of  the  Thursday  the  plaintiff  was  informed  by  a 
Mr.  Berry  that  Dodds  had  been  offering  or  agreeing  to  sell  the  property 
to  Thomas  Allan,  the  other  defendant.  Thereupon  the  plaintiff,  at 
about  half-past  seven  in  the  evening,  went  to  the  house  of  Mrs. 
Burgess,  the  mother-in-law  of  Dodds,  where  he  was  then  sta3-ing,  and 
left  with  her  a  formal  acceptance,  in  writing,  of  the  offer  to  sell  the 
property.  According  to  the  evidence  of  Mrs.  Burgess,  this  document 
never  in  fact  reached  Dodds,  she  having  forgotten  to  give  it  to  him. 

On  the  following  (Friday)  morning,  at  about  seven  o'clock.  Berry, 
who  was  acting  as  agent  for  Dickinson,  found  Dodds  at  the  Darlington 


iECT.   I.]  DICKINSON   V.  DODDS.  51 

railway  station,  and  handed  to  him  a  duplicate  of  the  acceptance  bj 
Dickinson,  and  explained  to  Dodds  its  purport.  He  replied  that  it 
was  too  late,  as  he  had  sold  the  property.  A  few  minutes  later  Dick- 
inson himself  found  Dodds  entering  a  railway  carriage,  and  handed 
him  another  duplicate  of  the  notice  of  acceptance,  but  Dodds  declined 
to  receive  it,  saying,  "  You  are  too  late.     I  have  sold  the  property." 

It  appeared  that  on  the  day  before,  Thursday,  the  11th  of  June, 
Dodds  had  signed  a  formal  contract  for  the  sale  of  the  property  to 
the  defendant  Allan  for  800/.,  and  had  received  from  him  a  deposit 
of  40/. 

The  bill  in  this  suit  prayed  that  the  defendant  Dodds  might  be 
decreed  specifically  to  perform  the  contract  of  the  10th  of  June,  1874  ; 
that  he  might  be  restrained  from  convepng  the  property  to  AUan ; 
that  AUan  might  be  restrained  from  taking  any  such  conveyance ;  that, 
if  any  such  conveyance  had  been  or  should  be  made,  Allan  might  be 
declared  a  ti*ustee  of  the  property  for,  and  might  be  directed  to  convej' 
the  property'  to,  the  plaintiff;  and  for  damages. 

The  cause  came  on  for  hearing  before  Vice-Chancellor  Bacon  on  the 
25th  of  January,  1876. 

Jffay,  Q.  C,  and  Caldecott,  for  the  plaintiff. 

Swanston,  Q.  C,  and  Crossley,  for  the  defendant  Dodds. 

Jackson^  Q.  C,  and  Gazdar^  for  the  defendant  Allan. 

[Bacon,  V.  C,  decreed  specific  performance  in  favor  of  the  plaintiff, 
on  the  ground  that  by  the  original  offer  or  agreement  with  the  plaintiff, 
and  b}'  relation  back  of  the  acceptance  to  the  date  of  the  offer,  Dodds 
had  lost  the  power  to  make  a  sale  to  Allan.  From  this  decision  the 
defendants  appealed.] 

Jamks,  L.J.,  after  referring  to  the  document  of  the  10th  of  June, 
1874,  continued :  — 

The  document,  though  beginning  "  I  hereby  agree  to  sell,"  was 
nothing  but  an  offer,  and  was^mly  intended,  to  be  an  offer,  for  the 
plaintiff  himself  tells  us  that  he  required  time  to  consider  whether  he 
would  enter  into  an  agreement  or  not.  Unless  both  parties  had  then 
agi'eed,  there  was  no  concluded  agreement  then  made  ;  Jt  was  in  effect 
^nd  substance  only  an  ott'er  to  sell.  The  plaintiff,  being  minded  not 
to  complete  the  bargain  at  that  time,  added  this  memorandum : 
"This  offer  to  be  left  over  until  Friday,  9  o'clock  a.m.,  12th  June, 
1874."  That  shows  it  was  only  an  offer.  There  was  ^o  cons[f^^p''flt,|pn 
given  for  the  undertaking  or  promise,  to  whatever  extent  it  ma}'  be 
considered  binding,  to  keep  the  property  unsold  until  9  o'clock  on 
Friday'  morning ;  but  apparently  Dickinson  was  of  opinion,  and 
probably  Dodds  was  of  the  same  opinion,  that  he  (Dodds)  was  bound 
by  that  promise,  and  could  not  in  any  way  withdraw  from  it,  or  retract 
It,  until  9  o'clock  on  Frida}'  morning,  and  this  probably  explains  a 
good  deal  of  what  afterwards  took  place.  But  it  is  clear  settled  law, 
on  one  of  the  clearest  principles  of  law,  that  this  promise,  bemg  a 
mere  njidum  pactum,  was  not  binding,  and  ""^at  at  any  moment  before 


62  DICKINSON   V.   DODDS.  [CHAP.   I. 

u  comi.'lfU'  ae'CC'jy.aucu  by  Dickiiisuii  of  the  oH'it.  l)o;lls  \v;is  a.s  IVoe 
as  DickiiisDii  hiiDself.  Well,  that  being  the  state  of  things,  it  is  said 
that  the  only  mode  in  which  Doclds  could  asseit  that  frtiedom  was  by 
actually  and  distinctly  saying  to  Dickinson,  •'  Now  1  withdraw  my 
olfer."  It  appears  to  me  that  there  is  neither  principle  nor  authority 
for  the  proposition  that  thc^re  must  be  an  express  and  actual  with- 
drawal of  the  otfer,  or  what  is  called  a  retractation.  It  must,  to  consti- 
tute a  contract,  appear  that  the  two  minds  were  at  one  at  the  samp 
moment  of  time ;  that  is,  that  there  was  an  offer  continuing  up  to  the 
time  of  the  acceptance.  If  there  was  not  such  a  continuing  olfer,  then 
the  acceptance  comes  to  nothing.  Of  course  it  may  well  be  that  the 
one  man  is  bound  in  some  way  or  other  to  let  the  other  man  know  that 
his  mind  with  regard  to  the  offer  has  been  changed  :  but  in  this  case, 
beyond  all  question,  the  plaintiff  knew  that  Dodds  was  no  longer 
minded  to  sell  the  property  to  him  as  plainly  and  clearl}-  us  if  Dodds 
had  told  hiin  in  so  many  words,  "■  I  withdraw  the  offer."  This  is  evi- 
dent from  the  plaintiff's  own  statements  in  the  bill. 

The  plaintiff  says  in  effect  that,  having  heard  and  knowing  that 
Dodds  was  no  longer  minded  to  sell  to  him,  and  that  he  was  selling 
or  had  sold  to  some  one  else,  thinking  that  he  could  not,  in  point  of 
law,  withdraw  his  offer,  meaning  to  fix  him  to  it,  and  endeavoring  to 
bind  him,  "  I  went  to  the  house  where  he  was  lodging,  and  saw  hia 
mnthpr-in-lfl^^^flnd  I pftTWittr  jitTT  hn  accgjt^nTe^of  the  offer^  knowjtig 
'aB  the_iiJiiie_Lliat  he  had  entirely  changecl  |iis  "-»i"^l  1  got  an  agent  to 
watch  for  him  at  7  o'clock  the  next  morning,  and  I  went  to  the  train 
just  before  9  o'clock,  in  order  that  I  might  catch  him  and  give  him  my 
noti(!e  of  acceptance  just  before  9  o'clock,  and  when  that  occurred  he 
told  mj'  agent,  and  he  told  me,  you  are  too  late,  and  he  then  threw 
back  the  paper."  It  is  to  mj^  mind  quite  clear  that,  before  there  was 
any  attempt  at  acceptance  by  the  plaintiff,  he  was  perfectly  well  aware 
that  Dodds  had  changed  his  mind,  and  that  he  had  in  fact  agreed  to 
sell  the  propert}'  to  Allan.  It  is  impossible,  therefore,  to  say  there 
was  ever  that  existence  of  the  same  mind  between  the  two  parties 
which  is  essential  in  point  of  law  to  the  making  of  an  agreement.  I 
am  of  opinion,  therefore,  that  the  plaintiff  has  failed  to  prove  that 
there  was  any  binding  contract  between  Dodds  and  himself. 

Mellish,  L.J.  1  am  of  the  same  opinion.  The  first  question  is, 
\£bether  this  document  of  the  10th  of  June,  1874,  which  was  signed  by 
Dodds,  was  an  agreement  to  sell,  or  only  an  oHer  to  sell,  the  propertt 
tbJ&rgtiniliiliLl(3'ii<^d't(rDickmson  ;  ana  i  am  cl^^il'U'  ol  opinion  tuat  it  was 
only  an  offer,  although  it  is  in  the  first  part  of  it,  independently  of  the 
postscript,  worded  as  an  agreement.  I  apprehend  that,  until  acceptance, 
so  that  both  parties  are  bound,  even  though  an  instrument  is  so  worded 
as  to  express  that  both  parties  agree,  it  is  in  point  of  law  onl}'  an  offer, 
and,  until  both  parties  are  bound,  neither  part}'  is  bound.  It  is  not 
necessary  that  both  parties  should  be  bound  within  the  Statute  of 
Frauds,    for,    if  one   party  makes   an  offer   in  writing,  and  the  other 


SECT.   I.]  .  DICKESrSON   V.   DODDS.  53 

accepts  it  verbally,  that  will  be  sufficient  to  bind  the  person  who  lias 
signed  the  written  docnnient.  But,  if  there  be  no  agieenient,  either 
verbally  or  in  writing,  then,  until  acceptance,  it  is  in  point  of  law  an 
offer  onl}-,  although  worded  as  if  it  were  an  agreement.  But  it  is 
hardl}'  necessary  to  resort  to  that  doctrine  in  the  present  case,  because 
the  postscript  calls  it  an  offer,  and  says,  "This  offer  to  be  left  over 
until  Friday,  9  o'clock  a.m."  Well,  then,  this  being  onh'  an  offer,  the 
law  sa^'s  —  and  it  is  a  perfectly  clear  rule  of  law  —  tliat,  although  it  is 
said  that  the  offer  is  to  be  left  open  until  Friday  morning  at  9  o'clock, 
that  did  not  bind  Dodds.  He  was  not  in  point  of  law  bound  to  hold 
the  offer  over  until  9  o'clock  on  Friday  moi'ning.  lie  was  not  so 
bound  either  in  law  or  in  equity.  Well,  that  being  so,  when,  on  the 
next  day,  he  made  an  agreement  with  Allan  to  sell  the  propert}'  to  him, 
I  am  not  aware  of  an}'  ground  on  which  it  can  be  said  that  that  con- 
tract with  Allan  was  not  as  good  and  binding  a  contract  as  ever  was 
made.  Assuming  Allan  to  have  known  (there  is  some  dispute  about 
it,  and  Allan  does  not  admit  that  he  knew  of  it,  but  I  will  assume  that 
he  did)  that  Dodds  had  made  the  offer  to  Dickinson,  and  had  given 
him  till  Friday  morning  at  9  o'clock  to  accept  it,  still,  in  point  of  law, 
that  could  not  prevent  Allan  from  making  a  more  favorable  offer  than 
Dickinson,  and  entering  at  once  into  a  binding  agreement  with  Dodds. 
Then  Dickinson  is  infonned  by  Berry  that  the  propeity  has  been 
sold  l)v  Dodds  to  Allan.  Berry  does  not  tell  us  from  whom  he  heard 
it,  but  he  says  that  he  did  hear  it,  that  he  knew  it,  and  that  he  in- 
formed Dickinson  of  it.  Now,  stopping  there,  the  question  which 
arises  is  this :  If  an  offer  has  been  made  for  the  sale  of  property,  and, 
before  that  offor  is  ^'^('cepied,  ihe  person  who  tias  made  the  offer  enters 
itj^to  a  binding  agreement  to  sell  the  property  to  somebody  else,  anT 
the  person  to  whom  the  offer  was  nrst  made  receives  notice  in  some 
way  that  the  propert}'  has  bet^ll  gOttt-To  another  persniv^can  he  after 
tliatTiralfe'linjinding  contract  by  the  acceptance  of  the  oti'er.''  1  am 
oT~opinioTt  that  lie  cannot:  The  law  miiy  be  righL  or  wi'urigTii  saying 
that  a  person  who  has  given  to  another  a  certain  time  within  which  to 
accept  an  offer  is  not  bound  by  his  promise  to  give  that  time  ;  but, 
if  he  is  not  bound  l)y  that  promise,  and  ma}'  still  sell  the  property  to 
some  one  else,  and  if  it  l>e  the  law  that,  in  order  to  make  a  contract, 
the  two  minds  must  be  in  agreement  at  some  one  time,  that  is,  at  the 
time  of  the  acceptance,  how  is  it  possible  that  when  the  person  to 
whom  the  offer  has  been  made  knows  that  the  person  who  has  made 
the  offer  has  sold  the  propert}'  to  some  one  else,  and  that,  in  fact,  he 
has  not  remained  in  the  same  mind  to  sell  it  to  him,  he  can  be  at 
liberty  to  accept  the  offer  and  thcreb}'  make  a  binding  contract?  It 
seems  to  me  that  would  be  simply  absurd.  If  a  man  makes  an  offer 
to  sell  a  particular  horse  in  his  stable,  and  says,  "  I  will  give  you  until 
the  day  after  to-morrow  to  accei)t  the  offer,"  and  the  next  day  goes  and 
sells  the  horse  to  somebody  else,  and  receives  the  purchase-money  fronc 
liim,  can  the  person  to  whom  the  offer  was  originally  made  then  come 


54  SHUEY   V.    UNITED   STATES.  [CHAP.   I. 

and  say,  "  I  accept,"  so  as  to  make  a  binding  contract,  and  so  as  to  be 
entitled  to  recover  damages  for  the  non-deliver}'  of  the  horse '  If  the 
rule  of  law  is  that  ^  mere  offeiL  to^sell  p_'''^iiff''^;^'i  '^viiiv.li  a^i}  bf>  with- 
drawn at  {\i\y  tinipi.  and  which  is  made  dependent  on  the  accej)taDce_ 
of  the  person  to  whom  it  is  made,  is  a  mere  nudum  pactum,  how  is  it 
possible"  ttliiL  Lhy  "person  to  wliom  the  olFcr  has  been  made  can,  by  ac- 
ceptance, make  a  binding  contract  after  he  knows  that  the  person  who 
has  made  the  ofler  has  sold  the  property  to  some  one  else?  It  is 
admitted  law  that,  if  a  man  who  makes  an  offer  dies,  the  offer  cannot 
be  accepted  after  he  is  dead,^  and  parting  with  the  property  has  very 
much  the  same  effect  as  the  death  of  the  owner,  for  it  makes  the 
performance  of  the  offer  impossible.  I  am  clearly  of  opinion  that, 
just  as,  when  a  man  who  has  made  an  offer  dies  before  it  is  accepted, 
it  is  impossible  that  it  can  then  be  accepted,  so  when  once  the  person 
to  whom  the  offer  was  made  knows  that  the  property  has  ]>een  sold  to 
some  one  else,  it  is  too  late  for  him  to  accept  the  offer,  and  on  that 
ground  I  am  clearly  of  opinion  that  tiiere  was  no  binding  contract  for 
the  sale  of  this  property  by  Dodds  to  Dickinson,  and  even  if  there  had 
been,  it  seems  to  me  that  the  sale  of  the  propertj'  to  Allan  was  first  in 
point  of  time.  However,  it  is  not  necessary  to  consider,  if  there  had 
been  two  binding  contracts,  which  of  them  would  be  entitled  to  priority 
in  equity,  because  there  is  no  binding  contract  between  Dodds  and 
Dickinson.^ 


SHUEY,   Executor,   v.    UNITED   STATES. 
Supreme  Court  of  the  United  States,  October  Term,  1875. 

[Reported  in  92  United  States,  73.] 

Appeal  from  the  Court  of  Claims. 

Henry  B.  Ste.  Marie  filed  his  petition  in  the  Court  of  Claims  to 
recover  the  sum  of  $15,000,  being  the  balance  alleged  to  be  due  him 
of  the  reward  of  $25,000  offered  by  the  Secretary  of  War,  on  the 
20th  of  April,  1865,  for  the  apprehension  of  John  H.  Surratt,  one 
of  Booth's  alleged  accomplices  in  the  murder  of  President  Lincoln. 

The  court  below  found  the  facts  as  follows:  — 

1  The  Palo  Alto,  2  Ware,  343,  359  ;  Pratt  v.  Baptist  See,  93  111.  475  ;  Beach  v.  First 
M.  E.  Church,  96  111.  179  ;  Wallace  v.  Townsend,  43  Ohio  St.  537;  Phipps  v.  Jones, 
20  Pa.  2G0  ;  Helfenstein's  Est.,  77  Pa.  328  ;  Foust  v.  Board  of  Publication,  8  Lea,  555, 
ace.  This  rule  is  the  same  in  the  civil  law.  Vale'ry,  Contrats  par  Correspondance, 
§  204  ;  Windscheid,  Pandekteurecht,  §  307  (2).  The  Biirfrerliches  Gesetzbuch.  ha»u. 
ever,  has  cliauged  the  i-^iIa  m  nqr^if^pnY.  It  provides^  153,  "  A  contract  is_  not  pre- 
vented from  coming  into  existence  by  the  death  orTaL'iipautfyot  tne  oilererj^fure 
accgiitance^^unTesS the&fffti'ei'  litis  nx|3ffesseJ_a  contrary  nllBiiLlUI].'^ 

'^  Bas'gall.iy7X"~AT^  concurred,  and  tEe  bill  was  dismissed  vVlLlreosts.  Coleman  v. 
Applegarth,  68  Md.  21,  was  very  similar  in  its  facts"  to  Dickinson  v.  Dodds,,aud  that 
case  was  cited  and  followed. 


SECT.   I.]  SHUEY   V,  UNITED   STATES.  55 

1.  On  the  20th  April,  1865,  the  Secretary  of  "War  issued,  and  caused 
to  be  published  in  the  public  newspapers  and  otherwise,  a  proclama- 
tion, whereby  he  announced  that  there  would  be  paid  by  the  War 
Department  "  for  the  apprehension  of  John  H.  Surratt,  one  of 
Booth's  accomplices,"  $25,000  reward,  and  also  that  '*  liberal  re- 
wards will  be  paid  for  any  information  that  shall  conduce  to  the 
arrest  of  either  of  the  above-named  criminals  or  their  accomplices;" 
and  such  proclamation  was  not  limited  in  terms  to  any  specific 
period,  and  it  was  signed  "  Edwin  M.  Stanton,  Secretary  of  War." 
On  the  14th  November,  1865,  the  President  caused  to  be  published 
his  order  revoking  the  reward  offered  for  the  arrest  of  John  H.  Sur- 
ratt.    13  Stat.  778. 

2.  In  April,  1866,  John  H.  Surratt  was  a  zouave  in  the  military 
service  of  the  Papal  government,  and  the  claimant  was  also  a 
zouave  in  the  same  service.  During  that  month  he  communicated 
to  Mr.  King,  the  American  minister  at  Rome,  the  fact  that  he  had 
discovered  and  identified  Surratt,  who  had  confessed  to  him  his 
participation  in  the  plot  against  the  life  of  President  Lincoln.  The 
claimant  also  subsequently  communicated  further  information  to  the 
same  effect,  and  kept  watch,  at  the  request  of  the  American  minister, 
over  Surratt.  Thereupon  certain  diplomatic  correspondence  passed 
between  the  government  of  the  United  States  and  the  Papal  govern- 
ment relative  to  the  arrest  and  extradition  of  Surratt;  and  on  the 
6th  November,  1866,  the  Papal  government,  at  the  request  of  the 
United  States,  ordered  the  arrest  of  Surratt,  and  that  he  be  brought 
to  Rome,  he  then  being  at  Veroli.  Under  this  order  of  the  Papal 
government,  Surratt  was  arrested ;  but,  at  the  moment  of  leaving 
prison  at  Veroli,  he  escaped  from  the  guard  having  him  in  custody, 
and,  crossing  the  frontier  of  the  Papal  territory,  embarked  at  Naples, 
and  escaped  to  Alexandria  in  Egypt.  Immediately  after  his  escape, 
and  both  before  and  after  his  embarkation  at  Naples,  the  American 
minister  at  Rome,  being  informed  of  the  escape  by  the  Papal  govern- 
ment, took  measures  to  trace  and  rearrest  him,  which  was  done  in 
Alexandria.  From  that  place  he  was  subsequently  conveyed  by  the 
American  government  to  the  United  States;  but  the  American  min- 
ister, having  previously  procured  the  discharge  of  the  claimant  from 
the  Papal  military  service,  sent  him  forward  to  Alexandria  to  iden- 
tify Surratt.  At  the  time  of  the  first  interview  between  the  claimant 
and  the  American  minister,  and  at  all  subsequent  times  until  the  final 
capture  of  Surratt,  they  were  ignorant  of  the  fact  that  the  reward 
offered  by  the  Secretary'  of  War  for  his  arrest  had  been  revoked  by 
the  President.  The  discovery  and  arrest  of  Surratt  were  due  entirely 
to  the  disclosures  made  by  the  claimant  to  the  American  minister  at 
Rome;  but  the  arrest  was  not  made  by  the  claimant,  either  at  Veroli, 
or  subsequently  at  Alexandria. 

3.  There  has  been  paid  to  the  claimant  by  the  defendants,  under. 
the_act^  27th  July,  1868  jlgStat.  234,  sectj}.  the  sum  of  $10,0007 


56  SHTJEY  V.    UNITED   STATES.  [CHAP.   I. 

Such  payment  waa  made  by  a  draft  on  the  treasury  payable  to  the 
order  of  the  clamiant,  which  draft  was  by  him  duly  indorsed. 

The  Court  found  as  a  matter  of  law  that  the  claimant's  service,  as 
set  forth  in  the  foregoing  finding,  did  not  constitute  an  arrest  of 
Surratt  within  the  meaning  of  the  proclamation,  but  was  merely  the 
giving  of  information  which  conduced  to  the  arrest.  For  such  in- 
formation the  remuneration  allowed  to  him  under  the  act  of  Con- 
gress was  a  full  satisfaction,  and  discharges  the  defendants  from  all 
liability. 

The  petition  was  dismissed  accordingly :  whereupon  an  appeal  was 
taken  to  this  Court. 

Ste.  Marie  having  died  pendejite  lite,  his  executor  was  substituted 
in  his  stead. 

Mr.  D,  B.  Meany  and  Mr.  F.  Carroll  Brewster,  for  the  appellant. 

Mr.  Assistant  Attorney -Geiieral  Edwin  B.  Smith,  contra. 

Mb.  Justice  Strong  delivered  the  opinion  of  the  Court. 

We  agree  with  the  Court  of  Claims,  that  the  service  rendered  by 
the  plaintiff's  testator  was,  not  the  apprehension  of  John  H.  Surratt, 
for  which  the  War  Department  had  offered  a  reward  of  $25,000,  but 
giving  information  that  conduced  to  the  arrest.  These  are  quite  dis- 
tinct things,  though  one  may  have  been  a  consequence  of  the  other. 
The  proclamation  of  the  Secretary  of  War  treated  them  as  different; 
and,  while  a  reward  of  $25,000  was  offered  for  the  apprehension,  the 
offer  for  information  was  only  a  "  liberal  reward."  The  findings  of 
the  Court  of  Claims  also  exhibit  a  clear  distinction  between  making 
the  arrest  and  giving  the  information  that  led  to  it.  It  is  found  as 
a  fact,  that  the  arrest  was  not  made  by  the  claimant,  though  the  dis- 
covery and  arrest  were  due  entirely  to  the  disclosures  made  by  him. 
The  plain  meaning  of  this  is,  that  Surratt's  apprehension  was  a  con- 
sequence of  the  disclosures  made.  ^ut,the  consequences  of  a  majilg_ 
^ctare  not  his  acts.  Between  the  consequence  and  the  disclosure 
that  leads  to  it  there  may  be,  and  in  this  case  there  were,  intermedi- 
ate agencies.  Other  persons  than  the  claimant  made  the  arrest,  — 
persons  who  were  not  his  agents,  and  who  themselves  were  entitled  to 
the  proffered  reward  for  his  arrest,  if  any  persons  were.  We  think, 
therefore,  that  at  most  the  claimant  was  entitled  to  the  "  liberal  re- 
ward" promised  for  information  conducing  to  the  arrest;  and  that 
reward  he  has  received. 

But,  if  this  were  not  so,  the  judgment  given  by  the  Court  of  Claims 
is  correct. 

The  offer  of  a  reward  for  the  apprehension  of  Surratt  was  revoked 
on  the  twenty-fourth  day  of  November,  1865;  and  notice  of  the  revo- 
cation was  published.  It  is  not  to  be  doubted  that  the  offer  was 
revocable  at  any  time  before  it  was  accepted,  and  before  anything 
had  been  done  in  reliance  upon  it.  There  was  no  contract  until  its 
terms  were  complied  with.  Like  any  other  offer  of  a  contract,  jl^ 
mjght,  therefore,  he  withdrawn^  befov^  nghta   h"d_?/^'-"pj_J2J2J^''  ^^' 


SECT.   I.]  BIGGERS   V.   OWEN.  57 

and  it  was  ■withdra-wn  through  the  same  channel  in  which  it  was 
made.  The  same  notoriety  was  givpn  to  t.l^e  revocation  that  was 
fr^ven  t^o  the  olTerT~alid  me  hnfTTngs  of  fact  do  not  show  that  any  in- 
formation was  given  by  the  claimant,  or  that  he  did  anything  to 
entitle  him  to  the  reward  offered,  until  five  months  after  the  offer  had 
been  withdi'awn.  True,  it  is  found  that  then,  and  at  all  times  until 
the  arrest  was  actually  made,  he  was  ignorant  of  the  withdrawal;  but 
that  is  an  immaterial  fact.  The  offer  of  the  reward  not  having  been 
made  to  him  directly,  but  by  means  of  a  published  proclamation,  he 
should  have  known  that  it  could  be  revoked  in  the  manner  in  which 
it  was  made.  Judgment  affirmed.^ 


BIGGERS  ET  AL.  V.  OWEN  et  al. 
Georgia  Supreme  Court,  October  Term,  1887. 

[Reported  in  79  Ga.  658.] 

Blaitoford,  Justice.  McMichael  and  Owens  brought  their  action 
of  assumpsit  against  B.  A.  Biggers,  P.  J.  Biggers,  Jr.,  and  T.  J. 
Pearce  (the  plaintiff  in  error  here)  in  the  city  court  of  Columbus,  to. 
recover  a  reward  of  $500,  which  they  alleged  had  been  offered  by  the 
defendants.  The  offer  of  reward  was  printed  as  an  advertisement  in 
a  newspaper  in  Columbus,  as  follows :  — 

"We  will  pay  $  500,  the  above  reward,  for  the  delivery  to  the  sheriff  of 
Muscogee  County  of  the  party  or  parties,  with  evidence  to  convict,  who  admin- 
istered the  poison  in  the  meal  which  proved  fatal  to  J.  W.  Biggers  and  J.  F. 
Burgess  and  wife  on  the  11th  of  November." 

Signed  B.  A.  Biggers,  P.  J.  Biggers,  Jr.,  T.  J.  Pearce. 

Upon  the  trial  of  the  case,  the  jury  rendered  a  verdict  in  favor  of 
the  plaintiffs  for  the  amount  of  the  reward,  $500. 

It  appeared  from  the  evidence  that  when  this  reward  was  offered, 
the  plaintiffs  arrested  a  certain  woman,  and  delivered  her  to  the 
sheriff  of  Muscogee  County;  that  a  committing  trial  was  had  before 
a  justice  of  the  peace  and  the  woman  discharged  for  the  want  of 
suflScient  evidence  to  commit.  The  reward  was  then  withdrawn ;  but 
McMichael  testifies  that  after  it  was  withdrawn,  Pearce  told  him  to 
go  on,  that  he  would  pay  him  what  his  services  were  worth.  After 
this,  a  warrant  was  sued  out  for  the  same  woman  by  Mr.  Pearce. 
McMichael,  being  a  bailiff  in  the  Court,  executed  the  warrant  and 
arrested  her.  She  was  indicted  for  the  poisoning,  was  tried  and  con- 
victed. The  judge  in  the  Court  below  charged  the  jury  that  if  this 
reward  was  offered,  and  the  plaintiffs  thereupon  furnished  evidence 
going  to  show  that  this  woman  was  guilty  of  the  crime,  they  were 

^  See  also  Hudson  Real  Estate  Co.  v.  Tower,  161  Mass.  10. 


58  AMERICAN   PUBLISHING,  ETC.   CO.   V.   WALKER.      [CHAP.   I.  ' 

entitled  to  recover  the  amount  of  the  reward.  The  Court  was  re- 
quested to  charge  that  if,  after  this  reward  was  offered,  it  was  with- 
drawn before  the  plaintiffs  performed  the  services  contemplated  by 
the  reward,  then  no  recovery  could  be  had,  under  the  declaration  in 
this  case.  The  Court  refused  to  give  this  in  charge  as  requested, 
but  charged  to  the  contrary. 

We  think  the-Qourt  erred  in  dpf»2''"inff  ^^  nhnrorp  as  rpgnpsted,  and 
iu_charging  as  he  did.  An  offer  of  reward  is  nothing  more  than  a 
proposition;  it  is  an  offer  to  the  public;  and  until  some  one  com- 
plies with  the  terms  or  conditions  of  that  offer,  it  may  be  withdrawn. 
This  is  well-settled  law,  as  to  which  there  can  be  no  dispute,  and 
counsel  in  this  case  did  not  contend  otherwise.  When  this  offer  of 
reward  was  withdrawn,  and  Pearce  afterwards  told  McMichael  to  go 
on  with  the  case,  that  he  would  pay  him  for  his  services,  Pearce  did 
not  thereby  become  liable  to  pay  him  the  amount  of  this  reward,  but 
only  to  pay  him  for  the  value  of  his  services,  ^nd  Ibis  is  not  an 
action  upon  a  rjuimtmn  meruit  to  recover  the  value  of  such  services; 
but  is  an  action  to^recov^r  speciffcaTIythe  amount  of  this  rewardj^OO. 

^i^c  —     There  was  no  evidence  iutrodu^ed^  in  the  Court  below  to  show  what 

wjg^j^j^^the  value  of  the  services  were,  and  the  record  does  not  distinctly 

ta  'att%<jn^^'^^  what  services  were  performed. 

^^^  The  Court  having  erred  in  failing  to  charge  as  requested,  and  in 
charging  the  jury  as  above  set  out,  we  consider  it  unnecessary  to  say 
more  about  the  case ;  and  we  therefore  reverse  the  judgment. 

Judgment  reversed.^ 


THE    AMERICAN    PUBLISHING    AND    ENGRAVING    COM- 
PANY, Appellant,   v.    JAMES    WALKER,   Respondent. 

St.  Louis  Court  of  Appeals,  March  4,   1901. 

[Reported  in  87  Missouri  Appeals,  503.] 

GooDE,  J.  The  appellant  sued  the  respondent  on  the  following 
written  instrument :  — 

"  It  is  agreed  that  the  American  Publishuig  and  Engraving  Company  will 
not  be  held  responsible  for  any  provisions  not  embodied  in  writing  herein,  and 

1  By  express  provision  of  the  codes  in  many  European  countries,  an  offer  is  irrevoc- 
able until  the  person  addressed  has  had  a  reasonable  time  to  answer  it.  See  Vale'ry, 
Contrats  par  Correspondance,  p.  167.  In  tlie  absence  of  such  legislation  the  weight  of 
opinion  in  tlie  civil  law  is  that  an  offer  may  be  revoked,  ibid.  There  has  been  much 
discussion  and  difference  of  opinion,  however,  as  to  the  liability  of  an  offerer  who  re- 
vokes his  offer  for  such  damage  as  the  person  addressed  may  have  incurred  by  acting 
in  reliance  on  the  offer.  The  theory  of  the  offerer's  liability  was  first  carefully  elabo- 
rated by  von  Ihering,  Jahrbiicher  fiir  Dogmatick,  IV.  p.  1  seq.,  under  the  heading  of 
culpa  in  confrahendo.  For  the  varying  views  of  other  writers,  see  Wiudscheid,  Lehr- 
huch  des  Pandektenrechts,  II.  §  307,  n.  8  (8th  ed.) ;  Vale'ry,  §  185. 


SECT.   I.]      AMERICAN  PUBLISHING,   ETC.   CO.   V.   WALKER.  59 

that  this  couJa:actc|Winot  be  canceRed  without  the  written  consent  of  the  said 
company. 

"  The  American  Publishing  and  Engraving  Company,  Syndicate  Depart- 
ment, 146  to  150  Nassau  Street,  and  2  to  6  Spruce  Street,  New  York  :  You 
are  hereby  authorized  to  furnish  the  undersigned  for  my  exclusive  use  one  cut 
and  no  duplicate  and  reading  matter  weekly  to  illustrate  the  merchant  tailor 
business  in  the  city  of  Springfield,  State  of  Missouri,  only,  fQr_the  term  of  one 
year  from  the  commencement  of  servi.ce,  and  until  notified  in  writing  to  dis- 
continue same,  for  which  I  agree  to  pay  to  your  order  at  New  York,  the  sum  of 
seventy-five  cents  and  postage  for  each  cut,  and  twenty-five  cents  and  postage 
for  each  duplicate  at  the  end  of  each  calendar  month  ;  naatter  sent  is  not  to  be 
duplicated  to  an.^  other  concernjn  my  line  of  business  io  Springfield^  Missouri. 

^  (Name)  "  James  Walker, 

"  Address  220  College  Street, 

"Dated  February  26,  1898.  Springfield,  Mo." 

The  evidence  shows,  without  conflict,  that  one  of  the  appellant's 
travelling  salesmen  took  the  above  order  from  the  respondent  on  the 
date  it  bears,  and  sent  to  his  principal,  immediately.  Thereupon, 
the  financial  standing  of  the  respondent  was  investigated,  which 
being  found  satisfactory,  the  appellant  sent  him  an  acceptance  of 
the  order,  together  with  a  copy  of  it.  Cuts'  and  reading  matter  were 
forwarded  to  the  respondent  as  called  for  in  the  contract  each  week 
to  May  14,  1898,  when  the  respondent  mailed  the  appellant  a  draft 
for  the  price  of  the  cuts  and  reading  matter  he  had  received  to  that 
time  and  directed  that  no  more  be  sent  to  him  because  he  could  not 
make  arrangements  with  his  home  papers  to  use  them.  Notwith- 
standing this  instruction  of  the  defendant,  plaintiff  continued  to  send 
cuts  to  the  end  of  the  year,  that  is,  to  February  26,  1899.  It  shipped 
fifty-two  cuts,  testified  to  be  worth  seventy-five  cents  each,  or  a  total 
value  of  $39,  and  expended  $2.16  for  necessary  postage.  The  de- 
fendant, as  above  stated,  paid  $7.90  on  this  account  and  the  action 
was  to  recover  the  balance. 

The  only  defence  interposed  was  that  the  contract  was  unilateral,  not 
binding  on  the  plaintiff,  and,  therefore,  not  binding  on  the  defendant. 
It  should  be  remarked  that  he  declined  to  receive  the  advertisements 
forwarded  to  him  after  he  had  notified  the  appellant  not  to  send  any 
more. 

The  testimony  shows  that  the  publishing  and  engraving  company 
had  engaged  to  pay  its  soliciting  salesman  thirty-three  per  cent  com- 
mission for  securing  the  order.  On  receipt  of  the  notice  from  the 
defendant  to  ship  no  more  cuts,  the  company  informed  him  that  it 
could  not  release  him  from  the  contract  unless  he  would  reimburse  it 
for  the  commission  which  it  had  paid  this  salesman  on  the  unexpired 
portion. 

We  regret  that  we  are  unable  to  concur  with  the  learned  judge  who 
tried  the  case  below,  in  his  construction  of  the  foregoing  contract. 
Whether  the  act  of  the  plaintifTs  agent  in  taking  the  order  from  the 
defendant  would  amount  to  an  agreement  by  it  to  comply  with  the  con- 


60         AMERICAN   PUBLISHING,    ETC.    CO.    V.    WALKER.      [CHAP.   I. 

tract  which  would  be  binding  and  effective,  is  unnecessary  to  decide. 
The  testimony  shows,  without  dispute,  that  a  formal  acceptance  of  the 
order  was  sent  to  the  defendant  as  soon  as  it  was  received,  and  per- 
formance duly  begun.  Beyond  question,  this  made  the  contract  Jbiudr 
ino-  on  both  parties  according  to  its  terms.  Granting,  for  the  sake  of 
argument,  that  Walker  might  have  withdrawn  his  order  before  it  was 
accepted,  he  could  not  lawfully  do  so  afterwards,  unless  one  party  to 
an  agreement  maj'  abrogate  it  at  his  pleasure.  He  makes  no  complaint 
of  the  kind  of  performance  rendered  b}-  the  plaintiff,  and  presumably 
the  cuts  and  reading  matter  were  satisfactory'.  It  cannot  be  tolerated, 
then,  that  he  should  terminate  his  liability  or  the  plaintiff's  rights  sim- 
pl}'  because  his  home  newspapers  refused  to  use  the  advertisements. 
Plaintiff  was  in  no  way  responsible  for  that.  If  the  contract  was  valid 
and  binding  from  the  first,  or  became  so  upon  acceptance  by  the  com- 
pany, it  was  valid  and  binding  to  the  full  extent  of  its  terms ;  that  is, 
the  company  was  bound  to  furnish  the  advertising  matter  for  one  3'ear 
and  thereafter  until  notified  to  cease  by  the  defendant,  and  the  latter 
was  bound  to  pay  for  it  at  least  one  year.  He  could  not  construe  the 
agreement  as  terminable  when  he  would  ;  for  it  may  be  that  the  plaintiff 
would  not  have  been  willing  to  enter  into  a  contract  for  less  than  one 
year. 

The  signatures  of  both  parties  to  a  written  agreement  are  not  always 
indispensable  to  its  validity'.  In  fact,  a  large  portion  of  the  commer- 
cial affairs  of  to-day  are  transacted  upon  orders  or  proposals  signed  by 
one  party  which  become  effective  and  binding  when  acted  upon  by  the 
other.  It  would  introduce  inextricable  confusion  into  business  transac- 
tions to  hold  that  agreements  so  made  might  be  dispensed  with  at  the 
caprice  or  will  of  one  of  the  parties.  United  States  v.  Carlisle,  Fed. 
Cas.  14274;  Mastin  v.  Grimes,  88  Mo.  478;  Wordsworth  v.  Wilson, 
11  La.  Ann.  402  ;  Hallock  v.  Comstock  Inc.,  26  N.  J.  Law,  268  ;  Mus- 
catine Waterworks  V.  Muscatine  Lumber  Co.,  83  la.  112,  52  N.  W. 
Eep.  108.  The  later  authorities  show  an  increasing  liberality  on  this 
point,  doubtless  for  the  reason  that  trade  usages  have  dictated  a  relaxa- 
tion from  the  former  strictness.  The  circumstance  that  a  contract 
lacks  the  signature  of  one  of  the  parties  to  it,  is  by  no  means  control- 
ling in  determining  whether  or  not  it  is  mutual  It  may  be  unilateral 
for  that  reason,  but  many  written  agreements  signed  by  one  side  are 
obligator}'.  The  requirement  of  mutuality  is  but  a  branch  of  the  doc- 
trine  that  a  contract,  to  be  recognized  by  the  law,  must  be  supported 
by  a  consideration.  When  a  consideration  is  wanting,  either  because 
one  of  the  parties  did  not  assent  to  the  contract,  or  because,  though  he 
did  assent  he  was  not  obliged  on  his  part  to  do  anything,  the  contract 
is  without  mutuality  or  unilateral.  It  is  not  legally  a  contract  at  all. 
On  the  other  hand,  although  not  signed  b}'  the  party  suing  on  it,  if  it 
is  clear  either  from  his  words  or  actions  that  he  assented  to  it  from  tiie 
first,  he  must  comply  with,  and  may  enforce,  its  obligations.  The 
assent  of  a  non-signing  party,  it  is  true,  must  be  signified  by  some 


SECT.    I.]      AIMEKICAN   PUBLISHING,   ETC.    CO.    V.    WALKER.  61 

positive  act  —  a  mere  mental  resolution  is  not  enough.  Lungstrass  v. 
German  Ins.  Co.,  48  Mo.  201.  But  many  overt  acts  may  be  evidence 
of  assent.  Vogel  v.  Peacoc,  157  III.  331)  ;  Fairbanks  v.  Meyers,  98 
Ind.  92;  Griffin  v.  Bristle,  39  Minn.  456;  Dows  v.  Morse,  62  la. 
231 ;  Grove  v.  Hodges,  55  Pa-  St.  504;  Flannery  v.  Dechert,  13  Pa.  St. 
505  ;  Botkin  v.  Mclntyre,  81  Mo.  567.  It  has  been  held  that  where  a 
person  made  a  written  proposal  to  do  certain  work  which  was  signed  by 
him  alone,  proof  that  it  was  made  in  the  presence  of  the  defendant  and 
assented  to  by  him  is  sufficient  to  warrant  the  finding  that  the  contract 
was  complete.  Berner  v.  Bagnell,  20  Mo.  App.  543  ;  Murph}-  v.  Mur- 
phy, 22  Mo.  App.  18.  If  one  of  the  parties  to  a  writing  does  not  sign 
it,  but  the  said  party  accepts  a  performance  of  its  provisions,  there 
is  no  merit  in  his  objection  when  sued  upon  the  instrument  that  it  was 
unilateral.     Stone  r.  Pennock,  31  Mo.  App.  544. 

^The  agreement  in  question,  after  the  performance  of  it  had  been  be- 
gun, was  manifestly'  obligatory  on  the  plaintiff  for  the  full  term  of  one 
year,  and  if  it  failed  to  furnish  matter  to  defendant  as  stipulated  for 
that  term,  it  was  responsible  in  damages.  This  being  true,  it  was 
equally  binding  on  him  for  the  same  period.  >In  Lewis  v.  Mutual  Life 
Ins.  Co.,  61  Mo.  534,  a  contract  was  construed  whereby  the  plaintiff 
agreed  to  become  the  general  agent  of  the  defendant  to  work  exclu- 
sively for  it  for  five  years.  There  were  various  other  provisions,  such 
as  that  he  should  furnish  a  full  corps  of  energetic  subagents,  which 
need  not  be  noticed.  The  compan}'  went  out  of  business  during  the 
time  of  the  contract,  and,  when  sued  by  the  plaintiff  to  pay  for  his  ser- 
vices during  the  full  period,  claimed  that  it  did  not  bind  itself  to  con- 
tinue in  business  for  five  years,  and  that  its  inabilit}-  to  execute  the 
whole  term  was  no  breach.  It  was  conceded  the  company  did  not 
covenant  directly  to  carry  on  business  for  any  certain  time.  Neverthe- 
less, it  was  held  bound  for  the  whole  period.  The  language  of  the 
opinion  is  applicable  to  the  present  controversy :  "  It  very  frequenUy;^ 
happens  tjiat  contracts  on  their  face  and  by  their  express_terrns  ajjpear 
to^  be  obligatory  on  one  party  only  ;  but  in  such  cases,  if  it  b^  jpanjfest 
tjiat  it  was  the  intention  of  the  parties,  and  the  consideration  upon 
which  one  party  assumed  an  express  obligation,  that  there  should  be^ 
corresponding  and  correlative  obligation  on  the  other  part}',  such  coi;- 
responding  and  correlative  obligation  will  be  implied/'  The  same  doc- 
trine was  laid  down  in  Glover  v.  Henderson,  120  Mo.  367. 

The  authority  chiefly  relied  on  by  the  respondent  is  Jones  v.  Durgin, 
16  Mo.  App.  370.  But  that  case  expressl}'  recognizes  the  validity  of 
instruments,  like  the  one  in  question,  and  their  binding  force  and  effect 
on  both  parties.  There  was  no  proof,  however,  of  any  formal  accept- 
ance by  the  plaintiflTs  as  there  is  here,  and  they  were  held  properly  non- 
suited because  their  undertaking  was  so  vague  and  indefinite  as  to  be 
incapable  of  enforcement  and  insufficient  to  make  them  responsible  in 
damages  if  they  broke  it.  But  here,  the  services  which  the  plaintiff 
company  agreed  to  render  Walker  are  clearly  and  unmistakably  stipu- 


62  RAFFLES   V.   WICHELHAUS.  [CHAP.    I. 

lated  b}'  the  very  language  of  the  contract.  Such  executory  agree- 
ments, when  acted  on,  are  always  held  binding.  If  it  is  clear  that  the 
minds  of  both  parties  have  met,  they  stand  on  the  same  footing  as  any 
other  contract,  and  are  to  have  the  same  principles  of  law  applied  to 
them.  Gary  v.  Mclntyre,  7  Col.  173  ;  Robson  v.  Mississippi  Log- 
ging Co.,  61  Fed.  193  ;  Stone  v.  United  States,  94  U.  S.  76  ;  Horn  v. 
Hansen,  22  L.  R.  A.  617,  7  Am.  andEng.  Ency.  of  Law  (2d  ed.),  115  ; 
Great  Northern  R.  R.  Co.  v.  Witham,  9  C.  P.  16  ;  Wise  v.  Ray,  3  G. 
Greene,  430 ;  Mason  v.  Dechert,  77  N.  Y.  595,  28  Am.  Rep.  190;  Kin- 
der V.  Brink,  82  111.  376. 

It  does  not  follow,  however,  that  the  plaintiff  is  entitled  to  recover 
the  full  price  of  the  advertising  matter  sent  after  it  was  notified  to  stop 
sending  it.  On  the  defendant's  refusal  to  accept  any  more  cuts,  it 
should  have  forborne  to  ship  them.  Under  such  circumstances  the 
party  notified  has  no  right  to  continue  to  perform  the  contract  and  thus 
enhance  the  damages.  The  measure  of  the  plaintiff's  recovery  is  the 
profit  it  should  have  realized  had  it  been  permitted  to  continue  to  fur- 
nish the  cuts  to  the  end  of  the  year.  7  Am.  and  Eng.  Ency.  of  Law 
(2d  ed.),  153;  Moline  Scale  Go.  v.  Bend,  52  la.  307;  Danforth  v. 
Walker,  37  Vt.  239  ;  Ward  v.  Thomas,  64  N.  Y.  107 ;  McGregor  v. 
Ross,  96  Mich.  103;  Collins  v.  Delaport,  115  Mass.  159. 

The  judgment  is  reversed,  and  the  cause  remanded,  in  which  dis- 
position of  it  all  the  judges  concur. 


C.  —  Acceptance. 


RAFFLES   V.   WICHELHAUS   AND  ANOTHER. 
In  the  Exchequer,  January  20,  1864. 

[Reported  in  2  Hurlstone  ^  Coliman,  900.] 

Declaration:  for  that  it  was  agreed  between  the  plaintiff  and 
the  defendants,  to  wit,  at  Liverpool,  that  the  plaintiff  should  sell  to 
the  defendants,  and  the  defendants  buy  of  the  plaintiff,  certain  goods, 
to  wit,  125  bales  of  Surat  cotton,  guaranteed  middling  fair  merchant's 
DhoUerah,  to  arrive  ex  "  Peerless"  from  Bombay  ;  and  that  the  cotton 
should  be  taken  from  the  qua}',  and  that  the  defendants  would  pay 
the  plaintiff  for  the  same  at  a  certain  rate,  to  ^vit,  at  the  rate  of  11  \d. 
per  pound,  within  a  certain  tune  then  agi-eed  upon  after  the  arrival 
of  the  said  goods  in  England.  Averments :  that  the  said  goods  did 
arrive  by  the  said  ship  from  Bombay  in  England,  to  wit,  at  Liverpool, 
and  the  plaintiff  was  then  and  there  ready  and  willing  and  offered 
'o  deliver  the  said  goods  to  the  defendants,    &c.     Breach :  that  the 


yy 


'y 


SECT.    I.]  RAFFLES    r.    TTICHELHAUS.  63 

efendants  refused  to  accept  the    said  goods  or  pay  the  plaintiff  for 
hem. 

Plea :  that  the  said  ship  mentioned  in  the  said  agreement  was 
meant  and  intended  by  the  defendants  to  be  the  ship  called  the 
"  Peerless,"  which  sailed  from  Bombay,  to  wit,  in  October  •  and  that 
the  plaintiff  was  not  read}'  and  willing  and  did  not  offer  to  deliver  to 
the  defendants  any  bales  of  cotton  which  arrived  by  the  last-mentioned 
ship,  but  instead  thereof  was  only  ready  and  willing  and  offered  to 
deUver  to  the  defendants  125  bales  of  Surat  cotton  which  arrived  by 
another  and  different  ship,  which  was  also  called  the  "Peerless,"  and 
which  sailed  from  Bombay,  to  wit,  in  December. 
X^       Demurrer,  and^iiiiKiet  therein. 

Milward^  in  support  of  the  demurrer.  The  contract  was  for  the 
sale  of  a  number  of  bales  of  cotton  of  a  particular  description,  which 
the  plaintiff  was  ready  to  deliver.  It  is  immaterial  by  what  ship  the 
cotton  was  to  anive,  so  that  it  was  a  ship  called  the  "  Peerless." 
The  words  "to  arrive  ex  'Peerless'"  only  mean  that,  if  the  vessel 
is  lost  on  the  voyage,  the  contract  is  to  be  at  an  end.  [Pollock,  C.  B. 
It  would  be  a  question  for  the  jury  whether  both  parties  meant 
the  same  ship  called  the  "  Peerless."]  That  would  be  so  if  the  con- 
tract was  for  the  sale  of  a  ship  called  the  ' '  Peerless ; "  but  it  is  for 
the  sale  of  cotton  on  board  a  ship  of  that  name.  [Pollock,  C.  B. 
The  defendant  only  bought  that  cotton  which  was  to  airive  by  a  par- 
ticular ship.  It  may  as  well  be  said,  that,  if  there  is  a  contract  for 
the  purchase  of  certain  goods  iu  warehouse  A.,  that  is  satisfied  by  the 
delivery  of  goods  of  the  same  description  in  warehouse  B.]  In  that 
case  there  would  be  goods  in  both  warehouses  ;  here  it  does  not  appear 
that  the  plaintiff  had  any  goods  on  board  the  other  "  Peerless." 
[Maktin,  B.  It  is  imposing  on  the  defendant  a  contract  different 
from  that  which  he  entered  into.  Pollock,  C.  B.  It  is  like  a  con- 
tract for  the  purchase  of  wine  coming  from  a  particular  estate  in  France 
or  Spain,  where  there  are  two  estates  of  that  name.]  The  defendant 
has  no  right  to  contradict  by  parol  evidence  a  written  contract  good 
upon  the  face  of  Jt.  He  does  not  impute  misrepresentation  or  fraud, 
but  only  says  that  he  fancied  the  ship  was  a  different  one.  Intention  is 
of  no  avail,  unless  stated  at  the  time  of  the  contract.  [Pollock,  C.  B. 
One  vessel  sailed  in  October  and  the  other  in  December.]  The 
time  of  sailing  is  no  part  of  the  contract. 

Mellish  ( Cohen  with  him) ,  in  support  of  the  plea.  There  is  nothing 
on  the  face  of  the  contract  to  show  that  any  particular  ship  called  the 
"Peerless"  was  meant;  but  the  moment  it  appears  that  two  ships 
called  the  "Peerless"  were  about  to  sail  from  Bombay,  there  is  a 
latent  ambiguity,  and  parol  evidence  may  be  given  for  the  purpose  of 
showing  that  the  defendant  meant  one  "Peerless"  and  the  plaintifl 
another.  That  being  so,  there  was  no  consensus  ad  idem,  and  therefore 
ao  binding  contract.     [He  was  then  stopped  by  the  Court.] 

Feb  Cubiau.     There  must  be  judgment  for  the  defendants. 

Judgment  for  the  defendant* 


64  FALCK   V.   WILLIAMS.  [CHAP.   I. 


FALCK  V.  WILLIAMS. 

In  the  Privy  Council,  on  Appeal  from  the  Suprbmb  Court  of 
New  South  Wales,  December  6,  9,  1899. 

[^Reported  in  [1900]  Appeal  Cases,  176.] 

The  judgment  of  their  Lordships  was  delivered  by 

Lord  Macnaghten.  Mr.  Falck,  who  was  plaintiff  in  the  action  and 
is  now  the  appellant,  was  a  shipowner  residing  in  Norway;  Williams, 
the  respondent,  was  a  shipbroker  in  Sydney,  New  South  Wales. 

Through  one  Buch,  who  was  a  shipbroker  and  chartering  agent  at 
Stavanger,  in  Norway,  Falck  did  a  good  deal  of  business  with  Williams. 

Buch  and  Williams  corresponded  by  means  of  a  telegraphic  code,  or 
rather  a  combination  of  two  codes  arranged  between  them.  It  was 
owing  to  a  misunderstanding  of  a  code  message  relating  to  one  of 
Falck's  vessels  called  the  "  Semiramis  "  that  the  difficulty  arose  which 
led  to  the  present  litigation. 

Falck  sued  Williams  for  breach  of  a  contract  of  affreightment  to  load 
the  "Semiramis"  with  a  cargo  of  copra  in  Fiji  for  delivery  in  the 
United  Kingdom  or  some  port  in  Europe.  Williams  understood  the 
proposal  made  to  him  to  be  a  proposal  for  carriage  of  a  cargo  of  shale 
to  be  loaded  at  Sydney  and  delivered  at  Barcelona,  and  he  accepted  the 
proposal  under  this  impression.  It  was  conceded  that  both  parties 
acted  in  good  faith,  and  that  the  mistake  was  unintentional,  whoever 
might  be  to  blame  for  the  misunderstanding. 

The  case  came  on  for  trial  before  Owen,  J.,  and  a  jury.  A  verdict 
was  taken  by  consent  for  the  defendant.  The  amount  of  damages,  if 
damages  were  recoverable,  was  fixed  by  agreement.  All  other  ques- 
tions were  reserved  for  the  Full  Court.  The  Full  Court  dismissed  the 
action  with  costs. 

The  first  question  is,  Was  there  a^coniract  ?  If  there  was  no  con- 
tract in  fact,  Was  the  proposal  wade  on  Falcli's  behalf  so  clear  and  un- 
ambiguous that  Williams  cannot  be  heard  to  say  that  he  misunderstood 
it?  If  that  question  be  answered  in  the  negative,  all  other  questions 
become  immaterial. 

The  negotiation  in  reference  to  the  "  Semiramis  "  began  apparently 
on  February  7,  1895,  by  a  telegram  from  Williams  to  Buch.  Williams 
offered  to  load  the  "  Semiramis  "  with  shale  at  Sydney  Wharf  for  Bar- 
celona "at  freight  per  ton  dead  weight  27s."  Buch  replied  by  tele- 
gram, dated  February  9,  asking  2250^.  as  a  lump  sum  for  freight.  On 
February  12  Williams  offered  27s.  6c?.  ''per  ton  dead  weight."  On  the 
13th  Buch  offered  to  accept  that  sum  on  the  ship's  dead  weight  "  ca- 
pacity." B3'  telegram  on  the  14th  Williams  explained  that  the  rate 
offered  was  "  per  ton  dead  weight  discharged."  On  the  15th  Buch 
replied  that  the  freight  was  to  be  pa3'able  "  on  guaranteed  dead  weight 
capacity,"  or  to  be  a  lump  sum  of  2100^.,  adding  a  word  interpreted  to 
mean  "  Do  your  best  to  obtain  our  figures,  vessel  will  not  accept  less  " 


SECT,   r.] 


FALCK   V.   WILLIAMS. 


66 


Then,  on  the  16th,  Williams  asked  what  was  the  guaranteed  dead 
weight  capacity  of  the  ship.  The  answer  on  the  17th  was  "  1550" 
tons.  On  the  18th  Williams  telegraphed,  "  Shippers  will  not  pay  more 
than  they  have  alread}-  offered  at  per  ton  dead  weight  discharged." 
He  also  offered  in  the  same  telegram  to  engage  a  vessel  to  load  shale 
at  Sydney  for  Liverpool,  at  freight  per  ton  dead  weight  235. 

Having  had  no  reply  to  his  telegram  of  the  18th,  Williams,  on  the 
21st,  telegraphed  to  Buch,  '•  Why  do  you  not  reply  to  our  last  tele- 
graph? It  is  very  important  that  we  have  immediate  reply."  And  he 
went  on  to  offer  to  engage  a  vessel  to  load  copra  at  two  ports  in  the 
Fiji  Islands,  deliverable  in  the  United  Kingdom,  or  some  port  on  the 
Continent,  at  47s.  6c?.  per  ton  cargo  delivered. 

Then  we  come  to  the  disputed  message.  On  February  22  Buch  tele- 
graphed as  follows  :  "  Shale  Cop^'right  Semiramis  Begloom  Estcorte 
Sultana  Brilliant  Argentina  Bronchil."  That  message  with  the  code 
words  interpreted  runs  thus :  ' '  Shnia  Y'^y  ra^*'  ^'^  ^'^^  ^^Fi  Hp?»^'- 
ble  to  work  business  ^ajLJijQm"  figures.     Semiramis. Have  closed  ia- 


{jia^^^^^i^iiiant^  A rp-entina.  Jieep  a  gngn  i^oK-ont  ror  Dusmess  for 
»l]ja  -pafiggl  and  wire  jjs  when  anything  gpod  offers. 

On  the  following  day  Williams  telegraphed,  ' *■  Semiramis,  we  con- 
firmjcharter."  And,  in  accordance  with  hu  reading  of  the  telegram  of 
February  22,  he  at  once  proceeded  in  the  name  and  on  behalf  of  Falck 
to  charter  the  *'  Semiramis  "  to  carr^'  a  cargo  of  shale  from  Sydney  to 
Barcelona.  So  the  controversy  arose.  And  after  mutual  explanations 
or  mutual  recrimination  the  action  was  brought. 

No^^^it^  is  impossible  to  contend  that  J.heg»»gas  a  contract  in  fact. 
Obviousl3'^the*p^'*i^s'^^ere  Qot  at.  oagi  Obviously  the  acceptance  by 
Williams  as  he  meant  it  to  be  understood  had  no  connection  with  or 
reference  to  the  proposal  which  Buch  intended  to  make  and  thought  he 
was  making. 

But  then,  said  the  learned  counsel  for  the  appellant,  the  message  of 
February  22  was  too  plain  to  be  misread.  An  intelligent  child  would 
have  understood  it.  Business  cannot  go  on  if  men  of  business  are 
allowed  to  shelter  themselves  under  such  a  plea.  Their  Lordships  are 
unable  to  take  that  view  of  the  disputed  message.  When  the  message 
was  sent  there  were  three  matters  under  consideration.  There  was  the 
Barcelona  charter  for  the  "  Semiramis,"  there  was  the  offer  for  a  Liver- 
pool charter,  and  there  was  the  Fiji  proposal.  Of  these  the  most  im- 
portant and  the  most  pressing  was  the  Barcelona  charter.  True,  the 
negotiation  was  at  a  deadlock  for  the  moment,  but  the  parties  were  so 
nearly  at  one  that  it  was  only  reasonable  to  expect  that  they  would 
come  to  terms,  and  it  is  to  be  observed  that  during  the  negotiation, 
which  seems  to  have  been  unusually  protracted,  the  "  Semiramis  "  was 
never  once  mentioned  in  connection  with  any  other  voyage.  Whether 
the  appellant's  view  or  the  respondent's  view  be  correct,  the  telegram 
of  February  22  seems  to  deal  with  all  three  points.     The  appellant  says 

VOL    I.  —  5 


6Q  MANSFIELD   V.   HODGDON.  [CHAP.   L 

that  the  fixst  two  words  of  the  code  message  deal  compendiously  with 
both  the  Barcelona  charter  and  the  Liverpool  proposal,  and  that  the 
next  three  words  deal  with  the  "  Semiramis,"  the  last  word  of  the 
three  indicating  clearly  that  she  was  to  be  sent  to  Fiji.  The  respond- 
ent says  that  the  first  two  words  refer  to  the  Liverpool  proposal,  the 
second  two  to  the  Barcelona  charter,  and  that  the  fifth  word,  *'  estcorte," 
is  to  be  read  with  what  follows.  Indeed,  the  whole  controversy  when 
the  matter  is  threshed  out  seems  to  be  narrowed  down  to  this  question 
—  "Is  the  Avord  'estcorte'  to  be  read  with  what  has  gone  before  or 
with  what  follows?  In  their  Lordships'  opinion  there  is  no  conclusive 
reason  pointing  one  way  or  the  other.  The  faul^  jay  with  til*?  apppL 
lan£s_ag£iit.  If  he  had  spent  a  few  more  shillings  on  his  message,  if 
he  had  even  arranged  the  words  he  used  more  carefully,  if  he  had  only 
put  the  word  "  estcorte  "  before  the  word  "  begloom  "  instead  of  after 
.  it,  there  would  have  been  no  diflSculty.     It  is  not  for  their  Lordships 

*^^^Pi(A^  determine  what  is  the  true_CDiistoi£!tion^_of  Buch's  telegram.  It  was 
tfife  'duty  of  the  appellant  as  plaintiff  to  make  out  that  the  construction 
which  he  put  upon  it  was  the  true  one.  In  that  he  must  fail  if  the 
message  was  ambiguous,  as  their  Lordships  hold  it  to  be.  If  the  rgr 
spondent  had  been  maintaining  his  construction  as  plaintiff  he  wouj^ 
equally  have  failed. 

Their  Lordships  will  therefore  humbly  advise  Her  Majesty  that  this 
appeal  must  be  dismissed.  The  appellant  will  pay  the  costs  of  the 
appeal. 


NATHANIEL  B.   MANSFIELD  v.  BENJAMIN   E.  HODGDON. 

Supreme  Judicial  Court  of  Massachusetts,  March  23 — June  21, 

1888. 

[Reported  in  147  Massachusetts,  304.] 

Holmes,  J.  This  is  a  bill  specificalU'  to  enforce  a  covenant  to  sell 
to  the  plaintiff  "  the  farm  situated  in  that  part  of  Mount  Desert  Island 
called  Prett}'  Marsh,  and  consisting  of  between  two  hundred  and  sixty 
and  two  hundred  and  seventy  acres,  and  standing  in  the  name  of  Ben- 
jamin Hodgdou,  for  the  sum  of  fifteen  hundred  dollars  cash,  at  any 
time  within  thirty  days  from  the  date  hereof."  The  instrument  is  dated 
January  15,  1887,  and  is  signed  by  the  defendant  Hodgdon,  but  not 
b}^  his  wife.  The  defendant  Clara  E.  Allen  is  a  subsequent  grantee  of 
the  premises,  and  the  remaining  defendant,  William  H.  Allen,  is  her 
husband.  The  judge  who  heard  the  witnesses  made  a  decree  for  the 
plaintiff,  and,  the  evidence  having  been  reported,  the  defendants 
appealed. 

Giving  to  the  finding  of  the  judge  the  weight  which  it  must  have,  we 
think  the  evidence  must  be  taken  to  establish  the  following  facts.     The 


SECT.    I.J  SIANSFTELD   V.    HODGDON.  67 

\pstrument  was  sealed  by  Hodgdon,  and  has  not  been  altered^  The 
plaintiff  expressed  his  election  to  purchase  within  the  thirt\'  days 
allowed.  There  was  evidence  of  a  message  to  that  effect  haA'ing  been 
left  at  Hodgdon's  house  within  ten  days.  It  appears  that  a  blank  deed 
to  the  plaintiff  and  another  was  left  there  about  the  same  time,  and 
there  was  evidence  that  a  message  was  sent  to  Hodgdon  to  execute 
it  if  he  found  it  correct.  There  was  also  evidence  that  the  deed  was 
returned  unexecuted,  with  the  message  that  Mrs.  Hodgdon  refused  to 
sign  it,  and  with  no  other  objection  in  the  first  instance.  These  facts 
warranted  a  finding  that  sending  the  deed  implied,  and  was  under- 
stood to  imph',  notice  that  the  plaintiff  intended  to  buy,  at  least  if  the 
deed  corresponded  to  the  contract  (see  Warner  v.  Willington,  3  Drew. 
523,  533),  and  perhaps  whether  it  corresponded  or  not,  as  the  message, 
even  as  testified  to  by  Hodgdon,  imported  a  willingness  to  correct 
mistakes. 

The  defendants  take  the  ground  that  this  deed  did  not  correspond  to 
the  contract,  because  the  deed  included  a  mountain  lot  which  is  alleged 
not  to  be  included  in  the  land  described  b}-  the  contract.  The  question 
whether  that  lot  is  included  in  the  contract  is  also  important,  of  course, 
in  deciding  what  land,  if  an}*,  the  defendant  Allen  should  be  required 
to  convey.  The  words  used  must  be  construed  in  the  light  of  the  cir- 
cumstances, and  thus  construed  they  might  well  have  been  found  to 
import,  and  to  have  warranted  the  plaintiff  in  understanding  that  they 
imported,  all  the  defendant  Hodgdon's  land  in  Mount  Desert. 

Hodgdon  owned  onh'  three  lots  in  Mount  Desert.  Two,  of  seventy  and 
eighty  acres  respectively,  are  admitted  to  be  embraced  in  the  contract. 
The  mountain  lot,  seemingly  then  regarded  as  of  little  or  no  value, 
and  said  to  contain  sixt}'  acres,  brings  the  total  up  to  two  hundred  and 
ten  acres.  The  contract  was  for  between  two  hundred  and  sixty  and 
two  hundred  and  seventy  acres.  Hodgdon  sa3's  that  the  plaintiff  was 
introduced  to  him  by  a  letter  saying  that  he  wished  the  refusal  of  the 
property  down  East  for  thirt}'  da3's,  evidentl}'  suggesting  a  bargain  for 
the  whole.  The  plaintiff  testifies  that,  before  signing,  Hodgdon  said 
that  he  had  not  so  much  land  as  was  mentioned,  but  had  so  man}'  acres 
in  one  lot,  so  many  in  another,  and  so  many  in  a  third,  amounting  in 
all  to  two  hundred  and  fifteen  acres,  and  that  was  all  he  owned ;  that 
the  plaintiff  said  it  did  not  make  any  difference  whether  it  was  two 
hundred  and  fifteen,  or  two  hundred  and  sixty,  or  two  hundred  and 
seventy  acres  ;  and  that  thereupon  Hodgdon  signed.  Hodgdon  acquired 
all  the  land  by  one  deed,  had  previously  offered  the  whole  land  as  two 
hundred  and  sixty  acres  to  others,  subsequently  made  a  deed  of  the 
three  lots  to  the  plaintiff,  which  was  not  delivered,  and  convej^ed  them 
by  a  similar  deed  to  the  defendant  Mrs.  Allen. 

It  is  suggested  that  Hodgdon  understood  that  the  plaintiff  was  to 
pay  him  81,500  for  the  land,  subject  to  a  mortgage.  But  the  agreomeTTf 
contains  no  such  qualification,  and  must  be  construed  as  an  agreement 
to  convev  a  good  title  free  from  incumbrances,  which  there  is  evidence 


68  MANSFIELD   V.    HODGDON.  [CHAP.   I. 

tending  to  show  was  the  meaning  of  the  parties.  Linton  v.  Hichborn, 
126  Mass.  32.  If,  without  the  plaiutitT's  knowledge,  Hodgdon  did 
understand  the  transaction  to  be  different  from  that  which  his  words 
plainly  expressed,  it  is  immaterial,  as  his  obhgations  must  be  measured^ 
b}'  his_overt  jicts.  Western  Railroad  v.  Babcock,~6  Met.  346,  352; 
O'Donnell  (\  l^inton,  145  Mass.  461,  463.^ 

The  plaintiff,  although  he  signified  his  election  to  take  the  land 
within  thirty  days,  did  not  pay  or  tender  the  money  within  that  time. 
But  there  is  evidence  that  Hodgdon  was  responsible  for  this.  At  or 
soon  after  the  time  when  word  was  sent  that  Mrs.  Hodgdon  refused  to 
sign,  a  demand  or  request  was  made  that  Mrs.  Hodgdon  should  have 
three  acres  out  of  one  of  the  other  lots  as  a  consideration  for  her  sign- 
ing the  deed.  Of  course,  under  the  contract  the  plaintiff  had  a  right  to 
call  upon  Mr.  Hodgdon  to  give  a  good  title  to  the  whole,  but  he  was 
disposed  to  yield  something.  A  discussion  ensued,  of  course  on  the 
footing  that  the  plaintiff  was  desirous  of  making  the  purchase,  which  of 
itself  was  evidence  that  the  defendant  Hodgdon  had  notice  of  the  fact, 
and  this  was  prolonged  be^'ond  the  thirty  days.  When  the  parties  came 
to  terms,  a  new  deed  was  prepared  and  tendered,  was  executed  by  the 
Hodgdons,  and  was  handed  to  a  Mr.  Chapin,  who  had  acted  as  a  go- 
between.  But  later  in  the  same  da}'  Chapin  was  ordered  not  to  deliver 
the  deed,  and  the  bargain  with  the  plaintiff  was  repudiated.  There  is 
no  dispute  that  the  plaintiff  was  ready  to  pay  for  the  land  at  any  time 
when  he  could  get  a  conveyance. 

Afterwards  Hodgdon  conveyed  to  Mrs.  Allen,  Mrs.  Hodgdon  releasing 
dower.  But  Mrs.  Allen  had  full  notice  of  the  agreement  with  the 
plaintiff  before  the  conve3'ance  to  her,  and  before  any  agreement  was 
made  with  her  or  her  husband,  and,  although  informed  that  the  thirty 
days  had  gone  by,  she  had  notice  that  the  plaintiff  was  expecting  a  con- 
veyance, and  that  Hodgdon  might  have  trouble  by  reason  of  his  refusal 
to  convey  to  the  plaintiff.  Connihan  ik  Thompson,  111  Mass.  270; 
Hansard  v.  Hardy,  18  Ves.  455,  462.  Mr.  Allen  was  asked  whether  he 
knew  that  the  plaintiff  had  sued  Hodgdon  for  damages  before  the  pur- 
chase. This  must  have  meant  before  the  final  conveyance  to  Mrs. 
Allen,  as  Mrs.  Allen  was  party  to  getting  the  deed  back  from  Mr. 
Chapin,  and  had  notice  of  the  plaintiff's  rights  at  that  time,  before  any 
suit  was  begun.     But  the   evidence   was    excluded,   and  Mr.  Allen's 

1  See  also  Baines  v.  Woodfall,  6  C.  B.  n.  s.  657  ;  Smith  v.  Hughes,  L.  R.  6  Q.  B. 
607  ;  Ireland  v.  Livingston,  L.  R.  5  H.  L.  395  ;  Preston  v.  Luck,  27  Ch.  D.  497  ;  Van 
Praagh  v.  Ereridge,  [1902]  2  Ch.  266  ;  Thompson  o.  Ray,  46  Ala.  224  ;  Wood  v.  Du- 
val, 100  la.  724  ;  Lull  v.  Auamosa  Nat.  Bank,  110  la.  537  ;  Wood  v.  Allen,  111  la.  97  ; 
Miller  v.  Lord,  11  Pick.  11  ;  Stoddard  v.  Ham,  129  Mass.  383  ;  Tallant  v.  Stedman,  176 
Mass.  460. 466  ;  Home  F.  I.  Co.  v.  Bredehoft,  49  Neb.  152  ;  Phillip  v.  Gallant,  62  N  .Y. 
256  ;  Neufville  v.  Stuart,  1  Hill  Eq.  (S.  C.)  159 ;  J.  A.  Coates  &  Sous  v.  Buck,  93  Wis. 
128.  But  see  Green  v.  Bateman,  2  Woodb.  &  M.  359;  Lamar  Elevator  Co.  v.  Crad- 
dock,  5  Col.  App.  203  ;  Hartford,  &c.  R.  R.  Co.  v.  Jackson,  24  Conn.  514 ;  Rowland  v. 
New  York,  &c.  R.  R.  Co.,  61  Conn.  103  ;  Brant  v.  Gallup,  5  111.  App.  262  ;  Clay  v. 
Rickets,  66  la.  362 ;  Hogue  v.  Mackey,  44  Kan.  277  ;  Frazer  v.  Small,  59  Hun,  619. 


SECT.    I.]      AYER    V.   WESTERN   UNION   TELEGRAPH   CO.  69 

answer  is  not  properl}'  before  us.  He  did  not  suggest  that  he  was  led 
b}-  his  knowledge  to  assume  that  the  plaintiff  would  not  seek  specific 
performance,  and  must  be  taken  to  have  known  that  the  plaintiff  still 
had  the  right  to  do  so.     Connihan  v.  Thompson,  uhi  supra. 

The  defendant  Hodgdon's  undertaking  not  having  been  a  mere  offer, 
but  a  conditional  covenant  to  sell,  bound  him  irrevocably'  to  sell  in  case 
the  plaintiff  should  elect  to  buy,  and  should  pay  the  price  within  thirty 
days.  The  usual  doctrine  as  to  conditions  applies  to  such  a  covenant, 
and  as  the  covenantor  by  his  own  conduct  caused  a  failure  to  comply 
with  the  condition  in  respect  of  time,  he  waived  it  to  that  extent.  And 
upon  the  same  principle  he  exonerated  the  plaintiff  from  tuaking  an}' 
tender  when  the  new  terms  had  been  agreed  upon,  b^-  wholly  repudi- 
ating the  contract.  Carpenter  v.  Holcomb,  105  Mass.  280,  282  ;  Bal- 
lon V.  Billings,  136  Mass.  307  ;  Gormley  v.  Kyle,  137  Mass.  189  ;  Lowe 
V.  Harwood,  139  Mass.  133,  136.  If  it  be  true,  as  testified  for  the 
defendant,  that  he  also  objected  to  signing  a  deed  conveying  the  moun- 
tain lot,  this  was  a  further  excuse  for  the  delay.  Galvin  v.  Collins,  128 
Mass.  525,  527.  Decree  affirmed} 

F.  S.  Hesselthie,  for  the  defendants. 

G.  Putnam  and  J.  Fox^  for  the  plaintiff. 


FRED  W.    AYER  v.   WESTERN  UNION   TELEGRAPH 
COMPANY. 

Supreme  Judicial  Court  of  Maine,  August  24,  1887. 

[Reported  in  79  Maine,  493.] 

Emery,  J.  On  report.  The  defendant  telegraph  company  was 
engaged  in  the  business  of  transmitting  messages  by  telegraph 
between  Bangor  and  Philadelphia,  and  other  points.  The  plaintiff, 
a  lumber  dealer  in  Bangor,  delivered  to  the  defendant  company  in 
Bangor,  to  be  transmitted  to  his  correspondent  in  Philadelphia,  the 
following  message:  — 

"  Will  sell  800 M.  laths,  delivered  at  your  wharf,  two  ten  net  cash.  July 
shipment.     Answer  quick." 

The  regular  tariff  rate  was  prepaid  by  the  plaintiff  for  such  trans- 
mission. The  message  delivered  by  the  defendant  company  to  the 
Philadelphia  correspondent  was  as  follows:  — 

"  Will  sell  800M.  laths  delivered  at  your  wharf  two  net  cash.  July  8hip>- 
ment.     Answer  quick." 

It  will  be  seen  that  the  important  word  ''  tenjj  in  the  statement  of 
price  was  omitted. 

*  A  portion  of  the  opinion  is  omitted. 


70  AYER    V.   WESTERN    UNION   TELEGRAPH   CO.       [CHAP.    I. 

The  Philadelphia  party  immediately  returned  by  telegraph  the 
following  answer:  — 

"  Accept  your  telegraphic  offer  on  laths.     Cannot  increase  price  spruce." 

Letters  afterward  passed  between  the  parties  which  disclosed  the 
error  in  the  transmission  of  the  plaintiff's  message.  About  two 
weeks  after  the  discovery  of  the  error,  the  plaintiff  shipped  the  laths, 
as  per  the  message  received  by  his  correspondent,  to  wit,  at  $2.00 
per  M.  He  testified  that  his  correspondent  insisted  he  was  entitled 
to  the  laths  at  that  price,  and  they  were  shipped  accordingly. 

The  defendant  telegraph  company  offered  no  evidence  whatever, 
and  did  not  undertake  to  account  for,  or  explain  the  mistake  in  the 
transmission  of,  the  message.  The  presumption  therefore  is,  that  the 
mistake  resulted  from  the  fault  of  the  telegraph  company.  We  can- 
not consider  the  possibility  that  it  may  have  resulted  from  causes 
beyond  the  control  of  the  company.  In  the  absence  of  evidence  on 
that  point  we  must  assume  that  for  such  an  error  the  company  was  in 
fault.     Bartlett  v.  Tel.  Co.,  62  Maine,  221. 

The  fault  and  consequent  liability  of  the  defendant  company  being 
thus  established,  the  only  remaining  question  is  the  extent  of  that 
liability  in  this  case.  The  plaintiff  claims,  it  extends  to  the  differ- 
ence between  the  market  price  of  the  laths  and  the  price  at  which 
they  were  shipped.  The  defendant  claims  its  liability  is  limited  to 
the  amount  paid  for  the  transmission  of  the  message.  It  claims  this 
limitation  on  two  grounds.^ 

II.  The  defendant  company  also  claims  that  the  plaintiff  was  not 
in  fact  damaged  to  a  greater  extent  than  the  price  paid  by  him  for 
the  transmission.  It  contends  that  the  plaintiff  was  not  bound  by 
the  erroneous  message  delivered  by  the  company  to  the  Philadelphia 
party,  and  hence  need  not  have  shipped  the  laths  at  the  lesser  price. 
This  raises  the  question,  whether  the  message  written  by  the  sender 
and  entrusted  to  the  telegraph  company  for  transmission,  or  the  mes- 
sage wi-itten  out  and  delivered  by  the  company  to  the  receiver  at  the 
other  end  of  the  line,  as  and  for  the  message  intended  to  be  sent,  is 
the  better  evidence  of  the  rights  of  the  receiver  against  the  sender. 

The  question  is  important  and  not  easy  of  solution.  It  would  be 
hard,  that  the  negligence  of  the  telegraph  company,  or  any  error  in 
transmission  resulting  from  uncontrollable  causes,  should  impose 
upon  the  innocent  sender  of  a  message  a  liability  he  never  author- 
ized nor  contemplated.  It  would  be  equally  hard  that  the  innocent 
receiver,  acting  in  good  faith  upon  the  message  as  received  by  him, 
should,  through  such  error,  lose  all  claim  upon  the  sender.  If  one, 
owning  merchandise,  writes  a  message  offering  to  sell  at  a  certain 

1  The  first  ground  was  a  stipulation  printed  on  the  telegraph  blank,  purporting  to 
limit  the  liabilit}'  of  the  company  for  unrepeated  messages.  A  part  of  the  oprnlon  in 
which  this  defence  was  held  invalid  is  omitted.  "^ 


SECT.   I.]      AYER    V.    WESTERN   UNION   TELEGRAPH   CO.  71 

price,  it  would  seem  unjust  that  the  telegrapli  company  could  bind 
him  to  sell  at  a  less  price  by  making  that  error  in  the  transmission. 
On  the  other  hand,  the  receiver  of  the  offer  may,  in  good  faith,  upon 
the  strength  of  the  telegram  as  received  by  him,  have  sold  all  the 
merchandise  to  arrive,  perhaps  at  the  same  rate.  It  would  seem 
unjust  that  he  should  have  no  claim  for  the  merchandise.  If  an 
agent  receive  instructions  by  telegraph  from  his  principal,  and  in 
good  faith  act  upon  them  as  expressed  in  the  message  delivered  him 
by  the  company,  it  would  seem  he  ought  to  be  held  justified,  though 
there  were  an  error  in  the  transmission. 

It  is  evident  that  in  case  of  an  error  in  the  transmission  of  a  tele- 
gram, either  the  sender  or  receiver  must  often  suffer  loss.  As  be- 
tween the  two,  upon  whom  should  the  loss  finally  fall  ?  We  think  the 
safer  and  more  equitable  rule,  and  the  rule  the  public  can  most  easily 
adapt  itself  to,  is,  that,  as  between  sender  and  receiver,  the  party 
who  selects  the  telegraph  as  the  means  of  communication  shall  bear 
the  loss  caused  by  the  errors  of  the  telegraph.  The  first  proposer  can 
select  one  of  many  modes  of  communication,  both  for  the  proposal 
and  the  answer.  The  receiver  has  no  such  choice,  except  as  to  his 
answer.  If  he  cannot  safely  act  upon  the  message  he  receives 
through  the  agency  selected  by  the  proposer,  business  must  be  seri- 
ously hampered  and  delayed.  The  use  of  the  telegraph  has  become 
so  general,  and  so  many  transactions  are  based  on  the  words  of  the 
telegram  received,  any  other  rule  would  now  be  impracticable. 

Of  course  the  rule  aboye^  stated  presupposes  the  innocence  of  the 
receiver,  and  that  there  is  nothing  to  cause  him  to  suspect  an"^r^nr^ 
If  there  be  anything  in  the  message,  or  in  the  attendant  circurn- 
9tances,  or  jnjthe_prior  dealingsTof  the"  parties,  or  in  any"fhing  else, 
indicating  a  probable  error  in  the  transmission,  good"  faith  on  the" 
part  of  the  receiver  may  require  him  to  investigate  ^Beforpi  fio.\ii\^ 
"N^itFer  doesTlie'mle  include  forged  messages,  for  in  such  case  the 
supposed  sender  did  not  make  any  use  of  the  telegraph. 

The  authorities  are  few  and  somewhat  conflicting,  but  there  are 
several  in  harmony  with  our  conclusion  upon  this  point.  In  Durkee 
V.  Vt.  C.  R.  R.  Co.,  29  Vt.  137,  it  was  held,  that  where  the  sender 
himself  elected  to  communicate  by  telegraph,  the  message  received  by 
the  other  party  is  the  original  evidence  of  any  contract.  In  Saveland 
V.  Green,  40  Wis.  431,  the  message  received  from  the  telegraph  com- 
pany was  admitted  as  the  original  and  best  evidence  of  a  contract, 
binding  on  the  sender.  In  Morgan  v.  People,  59  111.  58,  it  was  said 
that  the  telegram  received  was  the  original,  and  it  was  held  that  the 
sheriff,  receiving  such  a  telegram  from  the  judgment  creditor,  was 
bound  to  follow  it,  as  it  read.  There  are  dicta  to  the  same  effect,  in 
Wilson  V.  M.  ik  N.  Ry.  Co.,  31  Minn.  481,  and  Howley  v.  Whipple, 
48  N.  H.  488. 

Tel.  Co.  V.  Schotter,  71  Ga.  760,  is  almost  a  parallel  case.  The 
sender  wrote  his  message,  "Can  deliver  hundred  turpentine  at  sixty- 


72  WILLIAMS    V.    CARWARDINE.  [CHAP.    I. 

four."  As  received  from  the  telegraph  company  it  read,  "can  deliver 
hundred  turpentine  at  sixty,"  the  word  "four"  being  omitted.  The 
receiver  immediately  telegraphed  an  acceptance.  The  sender  shipped 
the  turpentine,  and  drew  for  the  price  at  sixty-four.  The  receiver 
refused  to  pay  more  than  sixty.  The  sender  accepted  the  sixty,  and 
sued  the  telegraph  company  for  the  difference  between  sixty  and  the 
market.  It  was  urged,  as  here,  that  the  sender  was  not  bound  to 
accept  the  sixty,  as  that  was  not  his  offer.  The  Court  held,  however, 
that  there  was  a  complete  contract  at  sixty  —  that  the  sender  must 
fulfil  it,  and  could  recover  his  consequent  loss  of  the  telegraph 
company. 

It  follows,  that  the  plaintiff  in  this  case  is  entitled  to  recover  the 
difference  between  the  two  dollars  and  the  market,  as  to  laths.  The 
evidence  shows  that  the  difference  was  ten  cents  per  M. 

Judgment  for  plaintiff  for  eighty  dollars,  with  interest  from  the 
date  of  the  writ.^ 


MARY  ANN   WILLIAMS  v.  WILLIAM   CARWARDINE. 
In  the  King's  Bench,  April  18,  1833. 

[Reported  in  4  Bamewtdl  Sf  Adolphus,  621. | 

Assumpsit  to  recover  20/.,  which  the  defendant  promised  to  pay  to 
any  person  who  should  give  such  information  as  might  lead  to  the  dis- 
covery of  the  murder  of  Walter  Carwardine.  Plea,  general  issue.  At 
the  trial  before  Park,  J.,  at  the  last  Spring  Assizes  for  the  count}'  of 
Hereford,  the  following  appeared  to  be  the  facts  of  the  case :  One 
Walter  Carwardine,  the  brother  of  the  defendant,  was  seen  on  the 
evening  of  the  24th  of  March,  1831,  at  a  public  house  at  Hereford,  and 
was  not  heard  of  agaiu  till  his  body  was  found  on  the  12tli  of  April  in 
the  river  W^^e,  about  two  miles  from  the  cit}'.  An  inquest  was  held 
on  the  bod}^  on  the  13th  of  April  and  the  following  days  till  the  19th  ; 
and  it  appearing  that  the  plaintiff  was  at  a  house  with  the  deceased  on 
the  night  he  was  supposed  to  have  been  murdered,  she  was  examined 
before  the  magistrates,  but  did  not  then  give  anj-  information  which 
led  to  the  apprehension  of  the  real  offender.  On  the  25th  of  April  the 
defendant  caused  a  handbill  to  be  published,  stating  that  whoever 
would  give  such  information  as  should  lead  to  a  discover}'  of  the  mur- 
der o!"  Walter  Carwardine,  should,  on  conviction,  receive  a  reward  of 

1  Haubelt  v.  Rea  &  Page  Mill  Co.,  77  Mo.  App.  672,  ace. ;  Henkel  v.  Pape,  L.  R. 
6  Ex.  7  ;  Verdin  v.  Robertson,  10  Ct.  Sess.  Cas.  (3d  series)  35  ;  Postal  Tel.  Co.  v. 
Schaefer  (Ky.),  62  S.  W.  Rep.  1119  ;  Pepper  v.  Telegraph  Co.,  87  Tenn.  554,  contra. 

The  question  has  been  disputed  on  the  continent  of  Europe  also.  See  Lyon-Caen 
et  Renault,  Traite  de  Droit  Commercial,  Vol.  III.  §  23.  ■ 


SECT.   I.]  WILLIAMS    V.    CAKWAKDINE.  73 

20£.  ;  and  any  person  concerned  therein,  or  privy  thereto  (except  thr- 
party  who  actually  committed  the  offence),  should  be  entitled  to  such 
reward,  and  every  exertion  used  to  procure  a  pardon;  and  it  then 
added,  that  information  was  to  be  given,  and  application  for  the  above 
reward  was  to  be  made,  to  WilUam  Carwardine,  Holmer,  near  Hereford. 
Two  persons  were  tried  for  the  murder  at  the  Summer  Assizes,  1831, 
but  acquitted.  Soon  after  this,  the  plaintiff  was  severely  beaten  and 
bruised  by  one  Williams;  and  on  the  23d  of  August,  1831,  believing 
she  had  not  long  to  hve,  and  to  ease  her  conscience,  she  made  a  volun- 
tary statement,  containing  infonuation  which  led  to  the  subsequent 
conviction  of  Williams.  Upon  this  evidence  it  was  contended,  that  as 
the  plaintiff  was  not  induced  by  the  reward  promised  by  the  defendant 
to  give  e\idence,  the  law  would  not  imply  a  contract  by  the  defendant 
to  pay  her  the  201.  The  learned  Judge  was  of  opinion,  that  the  plain- 
tiff, having  given  the  information  which  led  to  the  conviction  of  the 
murderer,  had  performed  the  condition  on  which  the  20/.  was  to  become 
payable,  and  was  therefore  entitled  to  recover  it ;  and  he  directed  the 
jury  to  find  a  verdict  for  the  plaintiff,  but  desired  them  to  find  specially 
whether  she  was  induced  to  give  the  information  by  the  offer  of  the 
promised  reward.  The  jury'  found  that  she  was  not  induced  by  the  offer 
of  the  reward,  but  hy  other  motives. 

Curwood  now  moved  for  a  new  trial.  There  was  no  promise  to  pay 
the  plaintiff  the  sum  of  201.  That  promise  could  only  be  enforced  in 
favor  of  persons  who  should  have  been  induced  to  make  disclosures  by 
the  promise  of  reward.  Here  the  jury  have  found  that  the  plaintiff 
was  induced  by  other  motives  to  give  the  information.  They  have, 
therefore,  negatived  any  contract  on  the  part  of  the  defendant  with  the 
plaintiff. 

Denman,  C.  J.  The  plaintiff,  by  having  given  information  which  led 
to  the  conviction  of  the  murderer  of  Walter  Carwardine,  has  brought 
herself  within  the  tenns  of  the  advertisement,  and  therefore  is  entitled 
to  recover. 

LiTTLEDALE,  J.  The  advertisement  amounts  to  a  general  promise 
to  give  a  sum  of  mone}'  to  any  person  who  shall  give  information  which 
might  lead  to  the  discovery  of  the  offender.  The  plaintiff  gave  that 
information. 

Pakke,  J.  There  was  a  contract  with  any  person  who  performed  the 
condition  mentioned  in  the  advertisement. 

Patteson,  J.  I  am  of  the  same  opinion.  We  cannot  go  into  the 
plaintiff's  motives.  Rule  refused. 


74  VITTY   V.   ELEY.  [CHAP.    I. 

GIBBONS  V.   PROCTOR. 
Ik  the  Queen's  Bench  Division,  April  22,  1891. 

[Reported  in  64  Law  Times,  New  Series,  594.] 

Motion  to  set  aside  a  nonsuit. 

Day,  J.  This  action  is  brought  to  recover  a  reward,  which  the 
defendant  advertised  as  payable  to  the  person  who  should  prosecute 
to  conviction  the  perpetrator  of  a  certain  crime.  The  facts  are 
simple.  The  defendant  published  on  the  29th  May  a  handbill,  in 
which  he  stated  that  be  would  give  251.  to  any  person  who  should 
give  information  leading  to  the  conviction  of  the  offender  in  ques- 
tion, such  information  to  be  given  to  a  superintendent  of  police  of 
the  name  of  Peun.  The  plaintiff  is  a  police  officer,  and,  in  the  early 
morning  of  the  29th  May,  the  day  on  the  afternoon  of  which  the  bill 
was  published,  communicated  important  information  which  led  to  the 
conviction  of  the  offender  to  a  comrade  and  fellow  policeman  called 
Coffin,  telling  Coffin,  as  his  agent,  to  carry  the  information  to  the 
proper  authority.  Coffin,  in  accordance  with  the  rules  of  the  force, 
first  informed  his  own  superior  officer,  Inspector  Lennan,  and  Lennan 
sent  on  the  information  to  Superintendent  Penn.  Both  Coffin  and 
Lennan  were  the  agents  of  the  plaintiff  to  carry  on  a  message  set 
going  by  him,  and  it  reached  Penn  at  a  time  when  he  had  notice  that 
the  person  sending  him  such  information  was  entitled  to  the  reward 
of  251.  The  condition  was  fulfilled  after  the  publication  of  the  hand- 
bill and  the  announcement  therein  contained  of  the  defendant's  offer 
of  the  reward  to  the  informant. 

Lawrence,  J.     I  entirely  agree. 

Nonsuit  set  aside,  and  verdict  entered  for  the  plaintiff  for  S5l.^ 


JOHN   VITTY,  Appellant,  v.   THOMAS  ELEY,  Trustee  op 
School  District,    No.    16. 

Appellate  Division  of  the  New  York  Supreme  Court,  April 

Term,   1900. 

[Reported  in  51  New  York,  Appellate  Division,  44.] 

Spring,  J.  The  defendant  is  trustee  of  a  school  district  in  the 
town  of  Lockport.  In  January,  1899,  the  schoolhouse  in  this  district 
was  broken  into  by  one  Joe  White,  and  a  quantity  of  property  stolen 

1  Eagle  V.  Smith,  4  Houst.  293;  Dawkins  v.  Sappington,  26  Ind.  199;  Auditor  v. 
Ballard,  9  Bush,  572  ;  Coffey  v.  Commonwealth  (Kv.),  37  S.  W.  Rep.  575  ;  Russell  v. 
Stewart,  44  Vt.  170,  ace.     See  also  Drummond  v.  United  States,  35  Ct.  Claims,  356. 


SECT.    I.]  VITTY   V.    ELEY.  75 

therefrom  or  destroyed.  The  trustee,  probably  by  authority  of  the 
citizens  of  the  district,  although  his  authority  is  not  in  question, 
offered  a  reward  of  twenty-five  dollars  "for  the  arrest  and  conviction 
of  the  party  or  parties  "  who  perpetrated  the  crime.  The  evidence 
shows  that  White  and  the  plaintiff  lived  together  and  were  cronies. 
Wliite,  after  breaking  into  the  schoolhouse  in  the  night,  i-eturned  to 
the  plaintiff's  house  bringing  with  him  chalk,  flags,  window  catches, 
and  other  stuff  which  he  had  taken  from  the  schoolhouse.  He  also 
had  two  chickens,  evidently  stolen,  which  were  eaten  in  the  house- 
hold. The  plaintiff  saw  White  burn  two  of  these  flags  and  secrete 
the  other  stuff  under  a  board  of  the  floor.  White  told  the  plaintiff 
not  to  "say  anything  about  this."  The  testimony,  therefore,  shows 
that  the  plaintiff  knew  that  White  had  stolen  this  stuff.  Later  on, 
after  the  reward  and  with  notice  of  it,  he  testified  that  he  told  the 
bartender  in  the  saloon  of  Mahar  &  Byrnes  that  Joe  White  broke 
into  the  schoolhouse;  that  Peter  Hayes,  who  was  working  up  the 
case,  was  called  in  from  the  back  room  and  the  plaintiff  then  volun- 
tarily told  him  what  he  had  seen,  incriminating  White.  Hayes  con- 
tradicted the  plaintiff  and  said  he  was  called  from  the  back  room,  and 
the  following  occurred:  "I  said,  'I  want  you  to  come  up  to  the 
sheriff's  oflSce  and  make  a  statement  as  to  what  you  know  about 
breaking  into  this  schoolhouse.'  He  says,  '  I  don't  know  anything 
about  it;,  I  was  home  in  bed  the  night  the  schoolhouse  was  broken 
into.'  I  said,  '  From  what  I  hear,  either  you  or  Joe  or  both  of  you 
went  into  that  schoolhouse.'  He  said,  'I  didn't  go  in  there.'  I 
said,  '  If  you  don't  come  up  to  the  sheriff's  office  and  tell  what  you 
know  about  it,  I  will  swear  out  a  warrant  against  you.*  He  said 
that  if  he  told  what  he  knew  about  it,  he  would  have  no  place  to  stay. 
I  said,  '  I  will  find  you  a  place  to  stay,  come  with  me,'  and  we  went 
to  the  courthouse  and  called  the  sheriff  out.  I  said,  '  This  man  will 
make  a  statement.'  We  went  into  a  side  room.  He  said  about 
what  he  testified  this  forenoon."  If  his  version  of  the  transaction  is 
correct,  the  plaintiff  did  not  voluntarily  give  up  the  information  with 
the  expectation  of  obtaining  the  reward,  but  it  was  extorted  from  him 
through  fear  that  he  might  be  arrested  himself  for  complicity  with 
White. 

There  is  considerable  contrariety  in  the  decisions  as  to  the  real 
basis  of  the  right  to  a  reward.  Tt^Jjowever.  aeema  t^<^  |^p  -^<^,tled_in 
^is  State  that  it  is  in  the  nature  of  a  .contract  inurino^to  the,  benefit^ 
of  the  person  who  gives^the  juforination.  A  few  principles  out  of 
the  conflicting  cases  I  think  may  be  stated,  although  there  is  no  uni- 
formity among  them. 

1.  The  information  must  be  given  with  knowledge  of  the  reward. 
Fitch  V.  Snedaker,  38  N.  Y.  248;  Howland  v.  Lounds,  51  id.  604.^ 

1  Chicago,  &c.  R.  R.  Co.  v.  Sebring,  16  111.  App.  181  ;  Ensminger  v.  Horn,  70  111 
App.  605;  Williams  v.  West  Chicago  St.  Ry.  Co.,  191  111.  610;  Lee  v.  Flemingsburg, 
7  Dana,  28  (overruled) ;  Ball  v.  Newton,  7  Cush.  599 ;  Mayor  of  Hoboken  v.  Bailey, 


76  VITTY   V.   ELEY.  [CHAP.    1. 

I  think  the  evidence  warrants  the  conclusion  that  plaintiff  knew  of 
the  reward,  although  that  is  a  little  shadowy,  for  apparently  he  could 
not  read. 

2.  As  I  have  suggested,  it  is  a  contract  obligation.  This  being 
so,  it  must  be  the  voluntary  giving  up  of  the  information  by  the 
person.  If  cork-screwed  out  of  him  by  threats  inducing  fear  of 
prosecution,  I  take  it  no  recovery  could  be  had.  That  would  destroy 
the  contract  element.  In  the  early  English  case  of  "Williams  v.  Car- 
wardine  (4  Barn.  &  Aid.  621)  the  question  of  the  motive  was  held  to 
be  unimportant,  but  the  text  writers  and  American  authorities  do  not 
seem  to  have  followed  this  doctrine  strictly,  although  I  find  no  case 
in  this  State  distinctly  overruling  it.  That  case  cannot  be  good  law 
if  the  liability  is  contractual,  as  assent  and  a  voluntary  surrender  of 
the  information  would  be  essential. 

3.  The  authorities  hold  that  the  information  must  be  imparted 
with  a  view  to  obtaining  the  reward.  18  Encyc.  of  PI.  &  Pr.  1155; 
Hewitt  V.  Anderson,  56  Cal.  476.  And  in  Howland  v.  Lounds 
(supra)  the  court  says,  at  page  609 :  "That  a  party  claiming  a  reward 
of  this  character  must  give  some  information  or  do  something  having 
some  reference  of  the  reward  offered,  is  very  obvious.  The  action 
is,  in  fact,  upon  contract.  Where  a  contract  is  proposed  to  all  the 
world,  in  the  form  of  a  proposition,  any  party  may  assent  to  it, 
and  it  is  binding,  but  he  cannot  assent  without  knowledge  of  the 
proposition." 

In  the  present  case  the  plaintiff  does  not  claim  that  there  was  any 
talk  between  him  and  Hayes  to  the  effect  that  he  expected  the  reward. 
The  information  given  by  the  plaintiff  was  undoubtedly  valuable,  and 
even  essential  to  secure  the  conviction  of  White.  The  justice,  how- 
ever, on  conflicting  evidence,  or  upon  inferences  properly  deducible 
from  the  evidence,  has  decided  adversely  to  the  plaintiff.  This  deci- 
sion implies  that  he  reached  the  conclusion  that  the  information  was 
imparted  through  fear  of  arrest,  or  without  any  expectation  of  receiv- 
ing the  reward.  The  conclusion  is  supported  by  the  proofs,  and  we 
are  not  inclined  to  interfere  with  the  disposition  of  the  case  made  by 
the  justice. 

The  Judgment  is  affirmed,  with  costs  to  the  respondent. 

36  N.  J.  L.  490 ;  Fitch  v.  Snedaker,  38  N.  Y.  248 ;  Stamper  v.  Temple,  6  Humph. 
113,  ace.  See  also  City  Bank  v.  Bangs,  2  Edw.  Ch.  95;  Brecknock  School  District  v, 
Frankhouser,  58  Pa.  380. 


SECT.   I.]      WILLIAMS   V.   WEST   CHICAGO   STREET   EY.    CO.  77 


JAMES  WILLIAMS  v.   THE  WEST   CHICAGO   STREET 
RAILWAY   CO. 

Illinois  Supreme  Court,  October  24,  1901. 

[Reported  in  191  Illinois,  610.] 

Mr.  Justice  Hand  delivered  the  opinion  of  the  Court:  — 
This  is  an  action  of  assumpsit  brought  by  the  appellant,  against 
the  appellee,  in  the  Circuit  Court  of  Cook  County,  tq_recover  a  reward 
offered  by  the  appellee  for  the  arrest  and  conviction  of  the  murderer 
or  murderers  of  C.  B.  Birch,  who  was  killed  while  in  the  service  of 
the  appellee,  which,  as  published,  was  in  the  following  terms :  — 

"$5,000  Reward. 
"  Office  West  Chicago  Street  Railroad  Co., 
"June  24,  1895. 

"  The  above  reward  will  be  paid  by  the  West  Chicago  Street  Railroad  Com- 
pany for  the  arrest  and  conviction  of  the  murderer  or  murderers  of  C.  B.  Birch, 
who  was  fatally  shot  while  in  discharge  of  his  duty  as  receiver,  on  the  morn- 
ing of  June  2'6,  at  the  Armitage  Avenue  barn. 

"  Charles  T.  Yekkes,  Pres't." 

At  the  close  of  all  the  evidence  the  Court  directed  the  jury  to  find 
the  issues  for  th£-d£Xgndan_t^which  was  accordingly  done,  and  a  judg- 
ment having  been  rendered  on  said  verdict,  which  judgment  has  been 
affirmed  by  the  Appellate  Court  for  the  First  District,  a  further  appeal 
has  been  prosecuted  to  this  Court. 

At  about  two  o'clock  on  Sunday  morning,  June  23,  1895,  Birch, 
whose  duty  it  was  to  receive  the  money  brought  in  by  the  conductors, 
was  fatally  shot  at  the  barn  of  appellee  located  at  Armitage  Avenue, 
in  the  city  of  Chicago.  The  appglLint,  who  was  also  an  employee  of 
the  appellee^  and  whose  duty  consisted  of  going  from  barn  to  barn 
each  night  to  inspect  the  cash  registers,  was  in  the  barn  from  mid- 
night until  two  o'clock  in  the  morning,  and  left  just  before  the  killing 
of  Birch.  As  he  drove  away  in  his  buggy  he  noticed  two  men  coming 
across  the  street  toward  the  barn.  They  looked  sharply  at  him  and 
he  looked  at  them.  On  Monday  morning,  June  24,  the  appellant 
went  to  the  appellee's  office,  where  he  met  its  general  superintendent, 
who  inquired  of  him  if  he  saw  any  men  near  the  barn  as  he  drove 
away.  Appellant  told  him  that  he  had  seen  two  men  and  that  he 
thought  he  could  identify  them,  whereupon  the  superintendent  gave 
him  a  note  and  told  him  to  go  and  see  Captain  Larson  of  the  police 
force.  He  called  upon  Captain  Larson  that  afternoon,  told  him  what 
he  had  seen  and  gave  him  a  description  of  the  two  men,  whereupon 
the  officer  said  that  he  had  a  man  in  custody  at  that  time  who  he 
thought  answered  the  description  of  one  of  the  men  described  by 
him.     The  man,  whose  name  was  Julius  Mannow,  was  brought  up 


78 


WILLIAMS    V.    WEST   CHICAGO   STREET   RY.   CO.       [CHAP.   I. 


and  was  identified  by  the  apellant  as  one  of  the  men  he  had  seen  near 
the  barn  as  he  drove  away.     Captain  Larson  told  him  to  come  to  the 
station  the  next  day,  and  in  the  meantime  he  would  hunt  up  and  have 
arrested  the  other  man  he  had  described.     The  murder  of  Birch  led 
the  police  authorities  to  at  once  issue  what  was  termed  a  "drag-net 
order,"  —  that  is,  an  order  to  the    various  patrolmen  to  arrest   all 
suspicious  characters  in  their  respective  districts  and  bring  them  in 
for  examination  as  to  their  whereabouts  at  the  time  of  the  commis- 
sion of  the  crime.     Mannow  was  thus  arrested  and  brought  to  the 
station.     A  police  officer  named  Jurs  testified  upon  the  trial  of  this 
cause  that  about  two  months  before  the  time  of  the  murder  Mannow 
had  narrated  to  him  a  plan  for  the  robbing  of  a  coal  office  in  the 
manner  in  which  the  Armitage  Avenue  robbery  was  accomplished,  and 
had  described  Joseph  Windrath  as  concerned  in  the  plan,  and  that 
after  the  Armitage  Avenue  robbery  and  the  murder  of  Birch  the  wit- 
ness at  once  recalled  this  fact  and  suspected  Mannow  and  Windrath 
and  took  steps  to  cause  their  arrest.     This  was  before  the  informa- 
tion  was  given  by  the  appellant.     On  Tuesday  morning,  the  25th  day 
oi'  June,  the  appellant^orthe  first  time  learned  of  the  offered  reward 
by  reading  the  same  as  published  in  the  "  Chicago  Tribune."     After- 
wards, on  that  day,  he  went  again  to  the  police  station  and  identified 
Windrath,  who  had  been  arrested  in  the  meantime,  as  the  man  he 
had  seen   in  com|)any  with  Mannow  near  the  barn  just  before  the 
killing.     The  services  rendered  by  the  appellant  in  connection  with 
the  arrest  and  conviction  of  Mannow  and  Windrath  after  he  knew  of 
the  offered  reward,  consisted  in  hi.s  identification  of  Windrath,  and 
his  testifying  before  the  coroner's  jui'y,  the  grand  jury,  and  upon  the 
trial  in  the  criminal  court,  that  he  had  seen  Mannow  and  Windrath 
together  near  the  Armitage  Avenue  barn  on  the  night  and  near  the 
time  of  the  commission  of   the  crime.     Other  information  was  ob- 
tained by  the   police  authorities  shortly  after  the  identification  of 
Mannow  and  Windrath  which  fastened  the  crime  upon  the  two  men. 
Mannow  pleaded  guilty  and  Windrath  was  tried  and  convicted.     The 
offered  reward  waspaid  by  the  appelleejo^notber  clajmant. 

The  offer  of  a  reward  remains  conditional  until  it  is  accepted  by 
the  perforinance  ot  the  a£ivice,  and  one  whooffers  a  reward  has  the 
right  to  prescribe  wbataYexLterms  he  maj  see  fit,^nd  such  terms  must 

with 


be  substantially 


_coni£lied  jwith_before  any  contract  arises  between 
him  and  the"claimant.  Thus,  if  the  reward  is  offered  for  the  arrest 
and  conviction  of  a  criminal,  or  for  his  arrest  and  the  recovery  of  the 
money  stolen,  both  the  arrest  and  conviction  or  arrest  and  recovery 
of  the  money  are  conditions  precedent  to  the  recovery  of  the  reward; 
and  when  the  offer  is  for  the  delivery  of  a  fugitive  at  a  certain  place 
the  reward  cannot  be  earned  by  the  delivery  of  him  at  another  place, 
and  an  offer  for  a  capture  of  two  is  not  acted  upon  by  the  capture  of 
one.     The  reward  cannot  be  apportioned.     Theoffer  is  an  entirety, 

2l~Am.  &  Kng.  iincy. 


SECT.   I.]      WILLIAMS   V.   WEST  CHICAGO   STREET   RY.    CO.  79 

of  Law,  1st  ed.,  391-397;  Hogan  v.  Stophlet,  179  111.  150;  Furman 
V.  Parke,  21  N.  J.  L.  310;  Fitch  v.  Snedaker,  38  N.  Y.  248;  Juniata 
County  V.  McDonald,  122  Pa.  St.  115;  Shuey  v.  United  States,  92 
U.  S.  73. 

In  Hogan  v.  Stophlet,  supra,  which  was  an  action  for  the  recovery 
of  a  reward  offered  for  the  "apprehension  and  conviction  of  a  crim- 
inal," this  Court  said  (p.  153):  "The  reward  was  offered  for  the 
apprehension  and  conviction  of  the  person  or  persons  who  burned  or 
caused  the  "building^to  be  burned.  It  tiius  appears  that  the  reward 
was  offered,  not  for  the  conviction  alone,  but  for  the  apprehension 
and  conviction  of  the  guilty  party.  Appellant  is  entitled  to  recover 
for  both  or  he  cannot  recover  at  all.  The  reward  cannot  be  appor- 
tioned, —  that  is  to  say,  there  can  be  no  apportionment  of  it  between 
what  is  due  for  the  apprehension  and  what  is  due  for  the  conviction. 
The  offer  must  be  enforced  as  an  entirety,  or  not  at  all." 

In  Furman  v.  Parke,  supra,  the  reward  was  "for  the  apprehension 
and  conviction  of  such  person  or  persons  as  may  have  been  impli- 
cated in  the  murder  of  John  B.  Parke,  John  Castner,  Maria  Castner 
and  child."  The  Court  say:  "The  reward  is  to  be  paid  for  the 
apprehension  and  conviction,  not  of  one  of  several  persons  impli- 
cated, but  of  the  person  (if  one)  or  the  persons  (if  more  than  one) 
who  were  implicated,  not  in  the  murder  of  John  B.  Parke  alone,  but 
of  John  B.  Parke  and  three  other  persons.  .  .  .  The  person,  there- 
fore, to  be  entitled  to  the  reward,  must  aver  and  prove  that  the  person 
or  persons  implicated  in  each  of  the  four  murders  has  or  have  been 
apprehended  and  convicted." 

In  Fitch  V.  Snedaker,  38  N.  Y.  248,  the  offer  was  "to  any  person 
or  persons  who  will  give  such  information  as  shall  lead  to  the  appre- 
hension and  conviction  of  the  person  or  persons  guilty  of  the  murder," 
etc.  It  appeared  that  the  claimant  gave  evidence  which  led  to  the 
conviction  of  the  offender  but  did  nothing  towards  securing  his  dis- 
covery or  arrest,  and  it  was  held  that  he  was  not  entitled  to  the 
reward.  The  Court  said  (p.  250):  "It  is  entirely  clear  that  in  order 
to  entitle  any  person  to  the  reward  offered  in  this  case  he  must  give 
such  information  as  shall  lead  to  both  apprehension  and  conviction, 
—  that  is,  both  must  happen,  and  happen  as  a  consequence  of  infor- 
mation given.  No  person  could  claim  a  reward  whose  information 
caused  the  apprehension,  until  conviction  followed.  Both  are  con- 
ditions precedent.  No  one  could  therefore  claim  the  reward  who 
gave  no  information  whatever  until  after  the  apprehension,  although 
the  information  he  afterward  gave  was  the  evidence  upon  which  con- 
viction was  had,  and  however  clear  that  had  the  information  been 
concealed  or  suppressed  there  could  have  been  no  conviction.  This 
is  according  to  the  plain  terms  of  the  offer  of  the  reward." 

In  Juniata  County  v.  McDonald,  supra,  the  reward  was  for  the 
capture  and  delivery  of  a  criminal  to  the  jail,  and  a  person  who 
furnished  information  from  which  the  capture  resulted,  but  who  did 


80  WILLLA.MS   V.    WEST   CHICAGO    STREET   RY.   CO.      [CHAP.   I. 

not  deliver  the  prisoner  or  cause  him  to  be  delivered,  was  held  not  to 
be  entitled  to  the  reward.  The  Court  said:  "A  mere  reading  of  this 
paper  settles  the  whole  controversy.  The  reward  was  not  offered  for 
information  as  to  the  prisoner's  whereabouts,  but  for  his  capture 
and  delivery.  How,  then,  could  one  be  entitled  to  that  reward  who 
neither  captured  nor  delivered  him?  Admitting,  then,  that  the 
plaintiff  gave  the  sheriff  accurate  information  as  to  where  the  culprit 
could  be  found,  and  that  he  went  with  him  and  acted  as  one  of  his 
posse,  yet  on  that  officer  fell  the  duty  of  arrest  and  the  plaintiff  was 
relieved  of  all  responsibility." 

And  in  Shuey  v.  United  States,  supra,  which  was  a  suit  for  a 
reward  offered  by  the  Secretary  of  War  "for  the  apprehension  of 
John  H.  Surratt,  one  of  Booth's  accomplices,"  it  was  held  that  one 
who  had  made  disclosures  to  which  were  due  the  discovery  and  arrest 
of  Surratt  was  not  entitled  to  the  reward  for  his  apprehension.  The 
Court  say:  "It  is  found  as  a  fact  that  the  arrest  was  not  made  by 
the  claimant,  though  the  discovery  and  arrest  were  due  entirely  to  the 
disclosures  made  by  him.  The  plain  meaning  of  this  is,  that  Sur- 
ratt's  apprehension  was  a  consequence  of  the  disclosures  made.  But 
the  consequences  of  a  man's  act  are  not  his  acts.  Between  the  con- 
sequence and  the  disclosure  that  leads  to  it  there  may  be,  and  in  this 
case  there  were,  intermediate  agencies.  Other  persons  than  the 
claimant  made  the  arrest  —  persons  who  were  not  his  agents,  and 
who  themselves  were  entitled  to  the  proffered  reward  for  his  arrest, 
if  any  persons  were." 

Under  the  Authorities  above  cited  Jbe  appellant  cannot  recojsar 
unless  the  evidence  shows,  he_caused  the  arrest  and  conviction  oL. 
both  Mannow  and  Windrath.  He  did  neither.  At  most  be  furnished 
some  information  to  the  police  which  led  to  the  arrest  of  Wiudrath, 
and  identified  both  men  as  having  been  in  the  vicinity  of  the  barn  at 
the  time  of  the  commission  of  the  crime,  which  does  not  bring  him 
within  the  terms  of  the  offered  reward,  which  was  for  "the  arrest  and 
conviction  of  the  murderer  or  murderers  of  C.  B.  Birch." 

We  are  of  the  opinion  that  the  appellant  is  not  entitled  to  recover 
in  this  case  for  the  further  reason  that  the  services  performed  by  him 
were  substantially  all  rendered  before  the  reward  was  offered  or  at  a 
time  when  he  was  ignorant  of  the  fact  that  a  reward  had  been  offered. 
After  the  appellant  had  informed  the  superintendent  of  appellee  and 
the  captain  of  police  that  he  had  seen  Mannow  and  his  companion 
near  the  scene  of  the  murder  at  about  the  time  the  same  was  com- 
mitted, he  did  nothing  towards  securing  the  conviction  of  the  pris- 
oners other  than  what  he  could  have  been  required  to  do  as  a  witness. 
The  reward  was  not  offered  for  information  which  was  already  in  the 
possession  of  the  officers  nor  for  witnesses  who  would  come  forward 
and  testify  to  facts  which  were  then  known  to  be  within  their  knowl- 
edge, but  for  the  arrest  and  conviction  of  the  murderer  or  murderers. 
The  right  to  recover  a  reward  arises  out  of  the  contractual  relation 


SECT.   I.]      WILLIAMS   V.    WEST   CHICAGO   STREET   RY.   CO.  81 

which  exists  between  the  person  oEfering  the  reward  and  the  claimant, 
which  is  implied  by  law  by  reason  of  the  offer  on  the  one  hand  and 
the  performance  of  the  service  on  the  other,  the  reason  of  the  rule 
being  that  the  services  of  the  claimant  are  rendered  in  consequence 
of  the  offered  reward,  from  which  an  implied  promise  is  raised  on  the 
part  of  the  person  offering  the  reward  to  pay  him  the  amount  thereof 
by  reason  of  the  performance  by  him  of  such  service,  and  no  such 
promise  can  be  implied  unless  he  knew  at  the  time  of  the  performance 
of  the  service  that  the  reward  had  been  offered,  and  in  consideration 
thereof,  and  with  a  view  to  earning  the  same,  rendered  the  service 
specified  in  such  offer.  Fitch  v.  Snedaker,  supra ;  Rowlands  v. 
Lounds,  51  N.  Y.  604;  Stamper  v.  Temple,  6  Humph.  (Tenn.)  113; 
44  Am.  Dec.  296. 

In  Stamper  v.  Temple,  supra,  which  was  an  action  to  recover  the 
amount  of  a  reward,  the  Court  say:  ''To  make  a  good  contract  there 
must^  be  an  aggregatio  tnentium,  —  an  agreement  on  the  one  part  to 
give  and  on  the  other  to  receive.     How  could  there  be  such  an  agree- 

"ment  if  the  plaintiffs  in  this  case  made  the  arrest  in  ignorance  that  a 
reward  had  been  offered  ?  " 

In  Fitch  V.  Snedaker,  supra,  on  the  trial  several  questions  were 
asked  of  the  plaintiff,  who  was  a  witness  in  his  own  behalf,  relative 
to  the  person  to  whom  he  gave  information  in  relation  to  the  murder 
before  the  reward  was  offered  or  before  he  heard  of  it.  The  Court 
sustained  objections  thereto  and  excluded  the  evidence.  The  ruling 
of  the  trial  court  in  this  regard  on  appeal  was  held  to  be  correct,  and 
the  Court  on  page  251  say:  "  The  form  of  action  in  all  such  cases  is 
assumpsit.  The  defendant  is  proceeded  against  as  upon  his  contract 
to  pay,  and  the  first  question  is,  was  there  a  contract  between  the 
parties?  To  the  existence  of  a  contract  there  must  be  mutual  assent, 
or,  in  another  form,  offer  and  consent  to  the  offer.  .  .  .  Without 
that  there  is  no  contract.  How,  then,  can  there  be  consent  or  assent 
to  that  of  which  the  party  has  never  heard?  .  .  .  The  offer  could 
only  operate  upon  plaintiffs  after  they  heard  of  it." 

And  in  Howlands  v.  Lounds,  supra,  the  Court  say  (p.  605):  "In 
orderjo  entitle_a_party  to  recover  a  reward  offered,  he  must  establish 
Ijetween  himself  and  theperson  offering  the  rewnrd.  not  only  the  offer 
and  his  acceptance  of  it,  but  his  performance  of  the  8ervinpf=t  for 
whicETne^  reward  was  offered;  and  upon  principle,  as  well  as  upon 
authority,  the  performance  of  this  service  by  one  who  did  not  know 

4if__the   offered  could  not   have   fluted    in   reference  to   it  cannot 
recover. "_ 

We  are  of  the  opinion  the  appellant  failed  to  make  out  a  cause  of 
action,  and  that  the  trial  court,  for  the  reasons  above  suggested, 
properly  directed  a  verdict  for  the  appellee.     The  judgment  of  the 

^Appellate  Court  will  therefore  be  affirmed.  Judgment  affirmed. 

VOL.   I.  —  6 


82  OFFOKD  V.  DAVIES.  [CHAP.  I. 

OFFORD  V.  DAVIES  AND  ANOTHER. 

In  the  Common  Pleas,  June  2,  1862. 

[Reported  in  12  Common  Bench  Reports,  New  Series,  748.] 

This  was  an  action  upon  a  guaranty.  The  first  count  of  the  deo 
laration  stated,  that,  b}'  a  certain  instrument  in  writing  signed  bj 
the  defendants,  and  addressed  and  delivered  by  the  defendants  to 
the  ])iaintitf,  the  defendants  undertook,  i)romised,  and  agreed  witli  the 
plaintiff  in  the  words  and  figures  following,  that  is  to  sa}' :  ^  We,  the 
undersigned,  in  consideration  of  your  discounting,  at  our  request,  bills 
of  exchange  for  Messrs.  Davies  &  Co.,  of  Newtown,  ]Nrontgomer3-shire, 
drapers,  hereb}'  jointly  and  severally  guarantee  fpr  pic,  snnrp  nf  fm^hM^ 
quiendar  luoidhs  the  due  payment  of  all  such  bills  of  exchange,  to  the 
exfenT'otDOO/.  And  we  further  jointly  and  sevoralh'  undertnke  to 
make  good  any  loss  or  expenses  j'ou  may  sustain  or  incur  in  conse- 
quence of  advancing  Messrs.  Davies  &  Co.  such  moneys."  Averment, 
that  the  plaintiif,  relying  on  the  said  promise  of  the  defendants,  after 
the  making  of  the  said  promise,  and  within  the  space  of  twelve  calendar 
months  thereafter,  did  discount  divers  bills  of  exchange  for  tlie  said 
Messrs.  Davies  &  Co.,  of  Newtown  aforesaid,  certain  of  which  bills  of 
exchange  became  due  and  payable  before  the  commencement  of  this 
suit,  but  were  not  then  or  at  any  other  time  duly  paid,  and  the  said  bills 
respectivel}' were  dishonored  ;  and  that  the  plaintiif,  after  the  making 
of  the  said  promise,  and  within  the  said  twelve  calendar  months, 
advanced  to  the  said  Messrs.  Davies  &  Co.  divers  sums  of  money  on 
and  in  respect  of  the  discount  of  the  said  last-mentioned  bills  so  dis- 
honored as  aforesaid,  certain  of  which  moneys  were  due  and  owing  to 
the  plaintiff  before  and  at  the  time  of  the  commencement  of  this  suit ; 
and  that  all  things  had  happened  and  all  times  had  eiapseci  necessary, 
&c.  ;  yet  that  the  defendants  broke  their  said  promise,  and  did  not  pay 
to  the  plaintifl!",  or  to  the  respective  holders  for  the  time  being  of  the 
said  bills  of  exchange  so  dishonored  as  aforesaid,  or  to  anj'  other  per- 
son entitled  to  receive  the  same,  the  respective  sums  of  money  payable 
by  the  said  bills  of  exchange ;  nor  did  the  defendants  pay  to  tlic 
plaintiff  the  said  sums  of  money  so  advanced  by  the  plaintiff  as  afoie- 
said,  or  any  part  thereof;  whereby  the  sums  pa3'able  by  the  said  bilk 
of  exchange  so  dishonored  as  aforesaid  became  lost  to  the  plaintiff, 
und  he  became  liable  to  pay  and  take  up  certain  of  the  said  bills  of 
exchange,  and  did  pa}'  and  take  up  certain  of  the  said  bills  of  ex- 
change, and  was  forced  and  obliged  to  and  did  expend  certain  mouej's 
in  endeavoring  to  obtain  part  of  certain  of  the  said  bills  of  exchange, 
and  the  plaintiff  lost  the  interest  which  he  might  have  made  of  his 
moneys,  if  the  said  bills  had  been  dul}'  paid  at  maturity-. 

?\iin-tii  plea,  to  the  first  count,  —  so   far  as  the  same  relates  to  the 


SECT.   I.j  OFFORD   V.   DA  VIES.  83 

sums  payable  bv  the  defendants  in  respect  of  the  sums  of  money  par* 
able  by  the  said  bills  of  exchange,  and  the  said  sums  so  advanced,  — 
that,  after  the  making  of  the  said  guaranty,  and  before  the  plaintifi" 
had  discounted  si;ch  bills  of  exchange,  and  before  he  had  advanced 
3uch  sums  of  money,  tkc  defendants_rn""^'^^^"'^"f]vy]  ^^^^  a^i^  g'_^'"ityi 
and  requested  the  plaintiff  not  to  discionnt  such  bills  of  exchange,  ancT 
n«t-t?7'a(Tvance  suca  moiTeys^ 

— To  this  plea  the  plail?!T!fliemurred  ;  the  ground  of  demurrer  stated 
In  the  margin  being  * '  that  the  fourth  plea  offers  no  defence  to  that  part 
of  the  declaration  to  which  it  is  pleaded,  for  that  a  party  giving  a  guar- 
anty  [for  a  definite  period]  has  no  power  to  counteiTuand  it  without 
the  assent  of  the  person  to  whom  it  is  given."     Joinder. 

Prentice  (with  whom  was  Brandt) ,  in  support  of  the  demurrer.  A 
guaranty  like  this,  to  secure  advances  for  twelve  months,  is  a  contract 
which  cannot  be  rescinded  or  countermanded  within  that  time  without 
the  assent  of  the  person  to  whom  it  is  given.  [Byles.  J.  What  con- 
sideration have  these  defendants  received  ?]  For  any  thing  disclosed  by 
the  plea,  the  plaintiff  might  have  altered  his  position  in  consequence 
of  the  guaranty,  by  having  entered  into  a  contract  with  Davies  & 
Co.,  of  Newtown,  to  discount  their  bills  for  twelve  months.  In  Calvert 
J.  Gordon,  1  M.  &  R.  497,  7  B.  &  C.  809,  3  M.  &  R.  124,  it  was 
held  that  the  obligor  of  a  bond  conditioned  for  the  faithful  sen'ice 
of  A.  whilst  in  the  employ  of  B.  cannot  discharge  himself  by  giving 
notice  that  after  a  certain  period  he  will  be  no  longer  answerable ; 
nor  can  the  personal  representative  of  the  obligor  discharge  himself 
by  such  a  notice.^  Lord  Tenterden,  in  giving  judgment  in  that 
case,  says  (3  M.  &  R.  128):  "The  onlj'  question  raised  by  the 
defendant's  second  plea  is,  whether  it  is  competent  to  the  surety  to 
put  an  end  to  his  liability  by  giving  a  notice  which  is  to  take  effect 
from  the  very  day  on  which  it  is  given.  It  would  be  a  hardship 
upon  the  master  if  this  could  be  done.  It  is  said  that  it  would  be  a 
hardship  on  the  surety  if  this  liabilit}'  must  necessarily  continue  dur- 
ing the  whole  time  that  the  principal  remains  in  his  sei-vice ;  but,  look- 
ing at  the  instrument  itself,  it  would  appear  that  it  was  the  intention 
of  the  testator  to  enter  into  this  unlimited  engagement.  It  was  com- 
petent to  him  to  stipulate  that  he  should  be  discharged  from  all 
future  liability  after  a  specified  time,  after  notice  given.  This  he  has 
not  done."  Here,  the  defendants  have  stipulated  that  their  liability 
shall  discontinue  at  the  end  of  twelve  calendar  months.  What  ])re- 
tence  is  there  for  relieving  them  from  that  bargain?  [Bylks,  J.  Sup- 
|>ose  a  man  gives  an  open  guaranty,  with  a  stipulation  that  he  will  not 
withdi'aw  it,  —  what  is  there  to  bind  him  to  that  ?]  If  acted  upon  by 
the  other  party,  it  is  submitted  that  that  would  be  a  binding  contract. 
Hassell  o.  Long,  2  M.  &,  Selw.  363,  is  an  authority  to  the  same  effect 
as  Calvert  v.  Gordon. 

^  Aii'l  see  Gordon  v.  Calvert,  2  Sim.  253,  4Rn3s.  581,  where  an  injanction  to  restrain 

proceedings  at  law  upon  tlie  bond  was  dissolved. 


84  OFFORD   V.  DAVIES.  [CHAP,   I. 

JS'.  James,  Q.  C.  (with  whom  was  T.  Jones),  contra.  The  cases  upon 
bonds  for  guaranteeing  the  honesty  of  clerks  or  servants  are  inappli- 
cable :  there  the  contract  attaches  as  soon  as  the  clerk  or  servant  enters 
the  service,  and  it  is  not  separable.  This,  however,  is  not  a  case  of 
contract  at  all.  It  is  a  mere  authority  to  discount,  and  a  promise  to 
indemnify  the  plaintiff  in  respect  of  each  bill  discounted  ;  and  it  was 
perfecth'  competent  to  the  defendants  at  any  time  to  withdraw  that 
authority  as  to  future  transactions  of  discount.  This  is  more  like  the 
mandatum  pecunice  credendce  treated  of  by  Pothier  —  on  Obliga- 
tions, Part  II.  c.  6,  §  8,  art.  1.  If  so,  it  is  subject  to  all  incidents  of 
a  mandate  or  authorit}'.  [Willes,  J.  Mandatum  does  not  mean  a 
bare  authority  which  may  be  revoked.]  ...  A  mutual  agreement  to 
rescind  can  only  be  necessary  where  there  is  a  mutual  contract.  But, 
in  a  case  like  this,  where  there  is  no  complete  contract  until  some- 
thing is  done  by  the  mandator}',  the  assent  of  both  parties  can- 
not be  required.  Suppose  Davies  «Sc  Co.,  of  Newtown,  had  become 
notoriously  insolvent,  would  the  defendants  continue  bound  by  their 
guarant}',  if  the  plaintiffs,  with  notice  of  that  fact,  chose  to  go  on 
discounting  for  them?  [Williams,  .J.  Suppose  I  guarantee  the  price 
of  u  carriage,  to  be  built  for  a  third  party  who,  before  the  carriage 
is  finished,  and  consequently  before  I  am  bound  to  pay  for  it,  becomes 
insolvent,  —  maj'  I  recall  my  guaranty?]  Not  after  the  ooach-builder 
has  commenced  the  caniage.  [Krle,  C.  J.  Before  it  ripens  into  n 
contract,  either  party  may  withdraw,  and  so  put  an  end  to  the  matter. 
But  the  moment  the  coach-builder  has  prepared  the  materials,  he 
would  probabl}'  be  found  by  the  jury  to  have  contracted.]  In  an  Ameri- 
can work  of  considerable  authorit}',  Parsons  on  Contracts,  p.  517,  it  is 
said,  "A  promise  of  guaranty  is  always  revocable,  at  the  pleasure  of 
the  guarantor,  hy  sufiicient  notice,  unless  it  be  made  to  cover  some 
specific  transaction  which  is  not  yet  exhausted,  or  unless  it  be  founded 
upon  a  continuing  consideration,  the  benefit  of  which  the  guarantor 
cannot  or  does  not  renounce.  If  the  promise  be  to  guarantee  the 
paj'ment  of  goods  sold  up  to  a  certain  amount,  and,  after  a  par'v  has 
been  delivered,  the  guaranty  is  revoked,  it  would  seem  that  the  revo- 
cation is  good,  unless  it  be  founded  upon  a  consideration  whicn  has 
been  paid  to  the  guarantor  for  the  whole  amount ;  or  unless  the  seller 
has,  in  reliance  on  the  guaranty,  not  only  delivered  a  part  to  the  buyer, 
but  bound  himself  b^-  a  contract,  enforceable  at  law,  to  deliver  the 
residue."  Brocklebank  v.  Moore,  cor.  Abbott,  C.  J.,  Guildliall  Sit- 
tings after  Trinity  Term,  1823,  r«*ferred  to  in  2  Stark.  Evid.,  3d  edit. 
510,  n.,  is  a  direct  authority  that  ''a  continuing  guaranty  is  counter- 
mandable  by  parol."  And  the  same  principle  is  clearly  deducible  from 
Mason  v.  Pritchard,  12  East,  227.  [Williams,  J.  That  would  have 
been  applicable,  if  this  had  been  a  guaranty-  for  600/.,  with  no  mention 
of  the  twelve  calendar  months.]  The  mention  of  twelve  months 
would  not  compel  the  plaintiff  to  go  on  discounting  for  that  period.  In 
Holland  v.  Teed,  7  Hare,  50,  under  a  guaranty  given  to  a  banking-house 


SECT.    I.]  OFFOED    V.    DAVIES.  85 

consisting  of  several  partners,  for  the  repajTuent  of  such  bills  drawn 
upon  them  hy  one  of  their  customers  as  the  bank  might  honor,  and 
any  advances  they  might  make  to  the  same  customer,  within  a  certain 
time,  it  was  held  that  the  guaranty  ceased  upon  the  death  of  one  of 
the  partners  in  the  bank  before  the  expiration  of  the  time  to  which 
the  guaranty  was  expressed  to  extend  ;  that  bills  accepted  before  the 
death  of  the  partner,  and  pa3-able  afterwards,  were  within  the  guar- 
anty ;  and  that  the  amount  guaranteed  could  not  be  increased  by  any 
act  of  the  continuing  firm  and  the  customer  after  the  death  of  the 
partner,  although  such  amount  might  be  diminished  by  such  act. 
[Byles,  J.  The  case  of  a  change  in  the  firm  is  now  provided  for  by 
the  Mercantile  Law  Amendment  Act,  19  &  20  Vict.  c.  97,  §  4.  Ekle, 
C.  J.  What  meaning  do  3'ou  attribute  to  the  words  "  at  our  request" 
in  this  guarant}'  ?]  As  and  when  we  request.  The  notice  operated  a 
retractation  of  the  request,  and  an}'  discount  which  took  place  after 
that  notice  was  not  a  discount  at  the  request  of  the  defendants. 

Brandt,  in  reply.  The  Court  of  Exchequer  have  decided  in  this 
term,  in  a  case  of  Bradbury  v.  IVIorgan.^  that  the  death  of  the  surety 
does  not  operate  a  revocation  of  a  continuing  guarant}'.  If  that  be  so, 
it  is  plain  that  the  guarant}'  is  not  a  mere  mandatum,  but  a  contract. 
In  Gordon  v.  Calvert,  2  Sim.  253,  4  Russ.  581,  the  executrix  of  the 
deceased  surety-  gave  notice  to  Calvert  &  Co.,  the  obligees,  that  she 
would  no  longer  consider  herself  liable  on  the  bond ;  but  the  Vice- 
Chancellor  (Sir  L.  Shadwcll)  said,  that,  "  b}-  the  original  contract,  the 
liability  of  the  surety  was  to  continue  as  long  as  Calvert  &  Co.  kept 
Richard  Edwards,  or  he  chose  to  remain  in  their  service ;  that  after 
Calvert  &  Co.  had  received  the  plaintiff's  letter  they  never  gave  her 
any  intimation  that  the}-  did  not  consider  her  as  continuing  lial)le  under 
her  husband's  bond  :  that  their  conduct  did  not  operate  in  an}'  man- 
ner upon  her ;  and  that  therefore  the  injunction  ought  to  be  dissolved." 
That  shows  that,  in  the  opinion  of  that  learned  Judge,  the  assent  of 
the  three  persons  concerned  and  interested  in  the  barg:un  would  be 
requisite  to  its  dissolution.  The  fourth  plea  does  not  allege  that  notice 
of  revocation  was  given  before  any  bills  had  been  discounted  by  the 
plaintiffs.  It  must  therefore  be  assumed  that  some  discounts  had  taken 
place.      [  T.  Jones.     The  fact  undoubtedly  is  so.] 

Our.  adv.  vult. 

^  Since  reported,  31  Law  J.  Exch.  462  ;  [1  H.  &  C.  249].  There  the  guaranty  was 
in  the  following  terms:  "Messrs.  Bradbury  &  Co.,  —  I  request  you  will  give  credit 
in  the  usual  way  of  your  business  to  H.  L. ;  and,  in  consideration  of  your  doing  so,  I 
do  hereby  engage  to  guarantee  the  regular  payment  of  the  running  balance  of  his 
account  with  you,  nniil  I  give  you  notice  to  the  contrary,  to  the  extent  of  100/. ;  "  and  it 
was  held,  that  the  liability  was  not  determined  by  the  death  of  the  surety,  but  that  his 
executors  were  liable  to  Bradbury  &  Co.  for  goods  sold  and  credit  given  to  H.  L.  sub- 
sequently to  the  surety's  death, — on  the  ground  (contrary  to  the  doctrine  laid  down 
in  Smith's  Mercantile  Law,  4th  edit.  425,  6th  edit.  477,  and  adopted  in  Williams  on 
Executors,  5th  edit.  1604)  that  the  guaranty  was  a  contract  to  be  answerable  to  the 
extent  stipulated  for  credit  given  to  the  principal  debtor,  until  the  creditors  should 
receive  a  notice  to  put  an  end  to  it.  —  Rep 


f 


i^6  OFFOKD   V.   DA  VIES.  [CHAP.   I. 

Erle,  C.  J.,  now  delivered  the  judgment  of  the  Court. 

The  declaration  alleged  a  contract  bj  the  defendants,  in  consideration 
that  the  plaintiff  would,  at  the  request  of  the  defendants,  discount  bills 
for  Davies  &  Co.,  not  exceeding  600/.,  the  defendants  promised  to 
guarantee  the  repajTnent  of  such  discounts  for  txoelve  months,  and  the 
iiscount,  and  no  repaj'ment.  The  plea  was  a  revocation  of  the  promise 
before  the  discount  in  question  ;  and  the  demurrer  raised  the  question 
whether  the  defendants  had  a  right  to  revoke  the  promise.  We  are  of 
opinion  that  thej"  had,  and  that,  consequently,  the  plea  is  good. 

This  promise  by  itself  creates  no  obligation.^  It  is  in  eil'ect  condi- 
tioned to  be  binding  if  the  plaintiff  acts  upon  it,  either  to  the  benefit  of 
the  defendants  or  to  the  detriment  of  himself.  But,  until  the  condi- 
tion has  been  at  least  in  part  fulfdled,  the  defendants  have  the  power 
of  revoking  it.  In  the  case  of  a  simple  guaranty-  for  a  proposed  loan, 
the  right  of  revocation  before  the  proposal  has  been  acted  on  did  not 
appear  to  be  disputed.  Then  are  the  rights  of  the  parties  affected 
either  by  the  promise  being  expressed  to  be  for  twelve  months,  or  by 
the  fact  that  the  same  discounts  had  been  made  before  that  now  in 
question,  and  repaid  ?     We  think  not. 

The  promise  to  repay  for  twelve  months  creates  no  additional  liabil- 
ity on  the  guarantor,  but,  on  the  contrary,  fixes  a  limit  in  time  beyond 
which  his  liabilitj'  cannot  extend.  And,  with  respect  to  other  discounts, 
which  had  been  repaid,  we  consider  each  discount  as  a  separate  trans- 
action, creating  a  liability  on  the  defendant  till  it  is  repaid,  and  after 
repajTnent  leaving  the  promise  to  have  the  same  operation  that  it  had 
before  any  discount  was  made,  and  no  more. 

Judgment  for  the  defendants, 

*  "  A  great  number  of  cases  are  of  contracts  not  binding  on  both  sides  at  the  time 
when  made,  and  in  which  the  whole  duty  to  be  performed  rests  with  one  of  the  con- 
tracting parties.  A  guaranty  falls  under  that  class ;  when  a  person  says,  '  In  case 
you  choose  to  employ  this  man  as  your  agent  for  a  week,  I  will  be  responsible  for 
all  such  sums  as  he  shall  receive  during  that  time,  and  neglect  to  pay  over  to  you,' 
the  party  indemnified  is  not  therefore  bound  to  employ  the  person  designated  by  the 
§:uaranty ;  but  if  he  do  employ  him,  then  the  guaranty  attaches  and  becomes  bind- 
ing on  the  party  who  gave  it."  Parke,  B.,  Kenneway  v.  Treleavan,  6  M.  &  W.  498, 
601.  "  Suppose  I  say,  if  you  will  furnish  goods  to  a  third  person,  I  will  guarantee 
the  payment :  there  you  are  not  bomid  to  furnish  them  ;  yet  if  you  do  furnish  them 
in  pursuance  of  the  contract,  you  may  sue  me  on  my  guaranty."  Patteson,  J.,  Mor- 
ton V.  Bum,  7  Ad.  &  El.  19.  23. 


SECT.   I.]  BISHOP   V.   EATON.  87 


CHARLES  A.    BISHOP  v.    FRANK   H.    EATON. 

Supreme  Judicial  Court  of  Massachusetts,  March  13- 
JuNE  19,   1894. 

[Reported  in  161  Massachusetts,  496.] 

Contract,  on  a  guaranty.  Writ  dated  February  2,  1892.  Trial 
in  the  Superior  Court  witiiout  a  jury,  before  Braley,  J.,  who  found 
the  following  facts. 

The  plaintiff  in  1886  was  a  resident  of  Sycamore  in  the  State  of 
Illinois,  and  was  to  some  extent  connected  in  business  with  Harry  H. 
Eaton,  a  brother  of  the  defendant.     In  December,  1886,  the  defend- 
ant in  a  letter  to  the  plaintiff  said,  "If  Harry  needs  more  money,  let  ^ 
hirn_have  it.T  or  assist  him  to  get  it.  and  I  will  p<^<^  that  it  iff  paid  " 

On  January  7,  1887,  Harry  Eaton  gave  his  promissory  note  for 
two  hundred  dollars  to  one  Stark,  payable  in  one  year.  The  plaintiff 
signed  the  note  as  surety,  relying  on  the  letter  of  the  defendant,  and 
looked  to  the  defendant  solely  for  reimbursement,  if  called  upon  to 
pay  the  note.  Shortly  afterward  the  plaintiff  wrote  to  the  defendant 
a  letter  stating  that  the  note  had  been  given  and  its  amount,  and 
deposited  the  letter  in  the  mail  at  Sycamore,  postage  prepaid,  and 
properly  addressed  to  the  defendant  at  his  home  in  Nova  Scotia. 
The  letter,  according  to  rlie_ testimony  of  the  defendant,  was  never 
received  by  him.  At  the  maturity  of  the  note  the  time  for  its  pay- 
ment was  extended  for  a  year,  but  whether  with  the  knowledge  or 
consent  of  the  defendant  was  in  dispute.  In  August,  1889,  in  an 
interview  between  them,  the  plaintiff  asked  the  defendant  to  take  up 
the  note  still  outstanding,  and  pay  it,  to  which  the  defendant  replied  : 

"  Try  toj^p.t  Harry  to  4^a.jL-it IlJie.  don't,  I  will.     It  shall^  not  cost . 

you  anything." 

On75ctober  1,  1891,  the  plaintiff  paid  the  note,  and  thereafter  made 
no  effort  to  collect  it  from  Harry  Eaton,  the  maker.  The  defendant 
testified  that  he  had  no  notice  of  the  payment  of  the  note  by  the 
plaintiff  until  December  22,   1891. 

The  judge  ruled,  as  matter  of  law  upon  the  findings  of  fact,  that 
the  plaintiff  was  entitled  to  recover,  and  ordered  judgment  for  him; 
and  the  defendant  alleged  exceptions.^ 

F.  G.  Cook,  for  the  defendant. 

It.   W.  Light,  for  the  plaintiff. 

Knowlton,  J.     The  first  question  in  this  case  is  whether  the  con- 
tract proved  by  the  plaintiff  isanoriginal  and  independent  contract  ,^ 
Qy_aguar,anty.     The  judge  found  that  the  plaintiff  signed  the  note 
relying  upon  the  letter,  "and  looked  to  the  defendant  solely  for  reim- 
bursement if  called  upon  to  pay  the  note."     The  promise  contained 

1  The  defendant's  requests  for  rulings  are  omitted. 


88  BISHOP   V.   EATON.  [CHAP.   I. 

in  the  letter  was  in  these  words:  "If  Harry  needs  more  money,  let 
him  have  it,  or  assist  him  to  get  it,  and  I  will  see  that  it  is  paid." 
On  a  reasonable  interpretation  of  this  promise,  the  plaintiff  was 
authorized  to  adopt  the  first  alternative,  and  to  let  Harry  have  the 
money  in  such  a  way  that  a  liability  of  Harr}'  to  him  would  be 
created,  and  to  look  to  the  defendant  for  payment  if  Harry  failed  to 
pay  the  debt  at  maturity;  or  he  might  adopt  the  second  alternative 
and  assist  him  to  get  money  from  some  one  else  in  such  a  way  as  to 
create  a  debt  from  Harry  to  the  person  furnishing  the  money,  and,  if 
Harry  failed  to  pay,  might  look  to  the  defendant  to  relieve  him  from 
the  liability.  Thejvords  fairly  implyjjiat  Harry  was  to  be  primarily 
liable  for_the  debtj  eitTier  to  the_j3laintiff_or  to^sjich-ather  persons  as 
should  furnish  the  money,  and  -that  the  defendant  was  to  guarantee 
the, payment  of  it  Wg_ are -t.hgref ore  of  opinion,  that,  if  the  plaintiiaf 
4;elied.,.sal«ly  upon  tho  daffinijant,  he  was  authorized^ by  The  letter  to 
rely  upon  him  only  as  a  guarantor. 

The  defendant  requested  many  rulings  in  regard  to  the  law  appli- 
cable to  contracts  of  guaranty,  most  of  which  it  becomes  necessary 
to  consider.  The  language  relied  on  was  an  offer  to  guarantee,  which 
the  plaintiff  might  or  might  not  accept.  Without  acceptance  of  ijt, 
th^yp.  was  no  contract,  because  the  offer  ^^as  conuiilo^ai^  and  there 
was  no  consideration  for  the  promise.  But  this  was  not  a  proposition 
which  was  to  become  a  contract  only  upon  the  giving  of  a  promise 
for  the  promise,  and  it  was  not  necessary  that  the  plaintiff  should 
accept  it  in  words,  or  promise  to  do  anything  before  acting  upon  it. 
It  was  an  offer  which  was  to  become  effective  as  a  contract  upon  the_ 
doing  of  the  act  referred  to.  It  was  an  offer  to  be  bound  in  consid- 
eration of  an  act  to  be  done,  and  in  such  a  case  the  doing  of  the  act 
constitutes  the  acceptance  of  the  offer  and  furnishes  the  consideration. 
Ordinarily  there  is  no  occasion  to  notify  the  offerer  of  the  acceptance 
of  such  an  offer,  for  the  doing  of  the  act  is  a  sufficient  acceptance, 
and  the  promisor  knows  that  he  is  bound  when  he  sees  that  action 
has  been  taken  on  the  faith  of  his  offer.  But  if  the  act  is  of  such  a 
kind  that  knowledge  of  it  will  not  quickly  come  to  the  promisor,  the 
promisee  is  bound  to  give  him  notice  of  his  acceptance  within  a 
reasonable  time  after  doing  that  which  constitutes  the  acceptance. 
In  such  a^ase  it  is  imj)lied  in  the  offer  that,  to  comp^ietetbe-contract, 
notice  shall  be  given  with  due^dijigence,  so,  Jhat_the^romisor  may 
know  thata  contracFbas_been  made.  But  where  the  promise  is  in 
consideration  of  an  act  to  be^^oneTit  becomes  binding  upon  the 
doing  of  the  act  so  far  that  the  promisee  cannot  be  affected  by  a 
subsequent  withdrawal  of  it,  if  within  a  reasonable  time  afterward 
he  notifies  the  promisor.  In  accordance  with  these  principles,  it  has 
been  held  in  cases  like  the  present,  where  the  guarantor  would  not 
know  of  himself,  from  the  nature  of  the  transaction,  whether  the  offer 
has  been  accepted  or  not,  that  he  is  not  bound  without  notice  of  the 
acceptance,  seasonably  given  after  the  performance  which  constitutes 


SECT.   I.] 


BISHOP   V.   EATON. 


89 


the  consideration.     Babcock  v.  Bryant,   12   Pick.   133;   Whiting  v. 
Stacy,  15  Gray,  270;  Schlessinger  v.  Dickinson,  5  Allen,  47. 

In  the  present  case  the  plaintiff  seasonably  mailed  a  letter  to  the 
defendant,  informing  him  of  what  he  had  done  in  compliance  with 
the  defendant's  request,  but  the  defendant  testified  that  he  never 
received  it,  and  there  is  no  finding  that  it  ever  reached  him.  The 
Judge  ruled,  as  matter  of  law,  that  upon  the  facts  found,  the  plaintiff 
was  entitled  to  recover,  njyl  thp  f|iip.Htinn  is  thus  presented  whether 
the  defendant  was  bound  by  the  acceptance  when  the  letter  was 
properly  mailed,  although  he  never  received  it. 

"When  an  offer  of  guaranty  of  this  kind  is  made,  the  implication  is 
that  notice  of  the  act  which  constitutes  an  acceptance  of  it  shall  be 
given  in  a  reasonable  way.  What  kind  of  a  notice  is  required  de- 
pends upon  the  nature  of  the  transaction,  the  situation  of  the  parties, 
and  the  inferences  fairly  to  be  drawn  from  their  previous  dealings,  if 
any,  in  regard  to  the  matter.  If  they  are  so  situated  that  communi- 
cation by  letter  is  naturally  to  be  expected,  then  the  deposit  of  a 
letter  in  the  mail  is  all  that  is  necessary.  If  that  is  done  which  is 
fairly  to  be  contemplated  from  their  relations  to  the  subject  matter 
and  from  their  course  of  dealing,  the  rights  of  the  parties  are  fixed, 
and  a  failure  actually  to  receive  the  notice  will  not  affect  the  obliga- 
tion of  the  guarantor. 

The  plaintiff  in  the  case  now  before  us  resided  in  Illinois,  and  the 
defendant  in  Nova  Scotia.  The  offer  was  made  by  letter,  and  the 
defendant  must  have  contemplated  that  information  in  regard  to 
the  plaintiff's  acceptance  or  rejection  of  it  would  be  by  letter.  J^ 
wcuild^e  ajiarsh  rule_jvybich  would,.ajibjec.t  lhe-J>laintiff  to_tbe-iu^k  of 
the  defendant's  fjjlure^tq^  receive^  th^lfittef-^iving  Qotice  of  his 
actiop-on  the  faith  of  the  offer.  "\]^ejire  oj  qpijion  jbat  the  plaintiff^ 
after  a,ssis;^n^,.,^^^r^^To^ettiiQ_mone^  did  all  that  he  was  required 
to'3J^~whej:L  he_^8easoiiiitJysent  the  defend^JnTtheletler^y  mail 
informing:  him  of  what  had  been  done._ 


How  far  such  considerations  are  applicable  to  the  case  of  an  ordi- 
nary contract  made  by  letter,  about  which  some  of  the  early  decisions 
are  conflicting,  we  need  not  now  consider. 

The  plaintiff  was  not  called  upon  under  his  contract  to  attempt  to 
collect  the  money  from  the  maker  of  the  note,  and  it  is  no  defence 
that  he  did  not  promptly  notify  the  defendant  of  the  maker's  default, 
at  least  in  the  absence  of  evidence  that  the  defendant  was  injured  by 
the  delay.  This  rule  in  cases  like  the  present  was  established  in 
Massachusetts  in  Vinal  v.  Richardson,  13  Allen,  521,  after  much 
consideration,  and  it  is  well  founded  in  principle  and  strongly  sup- 
ported by  authority. 

We  find  oi:^e  error  in  the  rulings  which  requires  us  to  grant  a  new 
trial.  It  appears  from  the  bill  of  exceptions  that  when  the  note 
became  due  the  time  for  the  payment  of  it  was  extended  without  the 
consent  of  the  defendant.     The  defendant  is  thereby  discharged  from 


90  DIJNLOP   V.    HIGGINS.  [CHAP.   I. 

his  liability,  unless  he  subsequently  assented  to  the  extension  and 
ratified  it.  Chace  v.  Brooks,  5  Cush.  43  ;  Carkin  v.  Savory,  14 
Gray,  528.  The  Court  should  therefore  have  ruled  substantially  in 
accordance  with  the  defendant's  eighth  request,  instead  of  finding  for 
the  plaintiff,  as  matter  of  law,  on  the  facts  reported.  Whether  the 
judge  would  have  found  a  ratification  on  the  evidence  if  he  had 
considered  it,  we  have  no  means  of  knowing. 

Exceptions  sustained.^ 


DUNLOP  V.  HIGGINS. 

In  the  House  of   Lokds,  February  21,  22,  24,   1848. 

DuxLOP  AND  Others,   Appellants. 

Vincent  Higgins  and  Others,  Respondents. 

[Re/'ortcd  in  1  House  of  Lords  Cases,  381.) 

This  w^as  an  appeal  against  a  decree  of  the  Court  of  Session,  made 
under  the  following  circumstances :  Messrs.  Dun  lop  &  Co.  were  jmn 
masters  in  Glasgow,  and  JNIessrs.  Higgins  &  Co.  were  iroiLJxi^rchants 
in  Liverpool.  Messrs.  Higgins  haiiwMten  to  MessrsTCunlop  respect- 
ing the  price  of  iron,  and  received  the  foUovving  answer:  "•  Glasgow, 
22d  January,  184o.  We  shall  be  glad  to  supi^ly  you  with  2000  tons, 
pigs,  at  65  shillings  per  ton,  net,  delivered  here."  JNIessrs.  Higgins 
wrote  the  following  reply:  "Liverpool,  25th  January,  1845.  You 
8a3'^  65s.  net,  for  2000  tons  pigs.  Does  this  mean  fur  our  usual  four- 
months'  bill?  Please  give  us  this  information  in  course  of  post,  as  we 
have  to  decide  with  other  parties  on  Wednesday  next."  On  the  28th 
Messrs.  Dunlop  wrote,  "  Oiu*  quotation  meant  65s.  net,  and  not  a  four- 
months'  bill."  This  letter  was  received  by  IVIessrs.  Higgins  on  the  30th 
of  January,  and  on  the  same  day,  and  by  post,  but  not  bj*  the  first  post 
of  that  day,  they  desi)atched  an  answer  in  these  terms:  "We  will 
take  the  2000  tons  pigs  you  offer  us.  Your  letter  crossed  ours  of 
jesterday,  but  we  shall  be  glad  to  have  your  answer  respecting  the 
additional  1000  tons.  In  your  first  letter  you  omitted  to  state  any 
terms;  hence  the  dela}'."  This  letter  was  dated  "  31st  January."  It 
was  not  delivered  in  Glasgow  until  2  o'clock  p.  m.  on  the  1st  of  Feb- 
ruary, and,  on  the  same  day,  Messrs.  Dunlop  sent  the  following  leply  : 
"  Glasgow,  1st  Februar}',  1845.  We  have  your  letter  of  yesterday,  liut 
are  sorry  that  m'c  cannot  now  enter  the  2000  tons  pig-iron,  our  oITlt  of 

1  The  authorities  npou  the  question  whether  notice  of  acceptance  is  necessary  to  the 
formation  of  a  contract  of  guaranty  are  fully  collected  in  Ames's  Cases  on  Suretyship, 
225,  note  2.  The  different  reasons  given  in  the  .decisions,  holding  notice  necessary, 
are  considered,  ihid.  230,  231  and  notes.  See  also  Parsons  on  Contracts,  Vol.  II.  13, 
note  1. 


SECT.    I.]  DTJNLOP   V.    HIGGINS.  91 

the  28th  not  ha\ing  been  iicci'pted  in  course."  Messrs  Higt^ns  wiote 
on  the  '2(\  February  to  say  that  they  had  erroaeouslj-  dated  their  letter 
on  the  31st  January,  that  it  was  really  wiitten  and  posted  on  the  30th, 
in  proof  of  which  they  referred  to  the  post-mark.  They  did  not,  how- 
ever, explain  the  delay  which  had  taken  place  in  its  delivery.  The 
iron  was  not  furnished  to  them,  and  iron  having  risen  very  rapidl}'  in 
the  market,  the  ciuestion  whether  there  bad  been  a  complete  contract 
between  tliese  parties  was  brought  before  a  court  of  law.  JNIessrs. 
Higgins  instituted  a  suit  in  the  Court  of  Session  for  damages,  as  for 
breach  of  contract.  XUe  defence  of  "Messis.  Dunlo))  was,  that  their 
letter  of  the_2Mt.li.  otfeii^o;  the  contract,  not  having  been  answered  in. 
dne  time,  tho.iy,  had  been  no.  sncli  acceptance  as  would  convert  tl tat 
offer  into  »  lawful  and  bindinp-  contracts  thg^t  their  letter  having  been 
delivered  at  Liverpool  .before  eight  o'clock-inL  the  niornint;  of  the  3Qth 
of  January,  Messra.  Higgins,. au^;;ht,  ner^^^i-dipg  to  the  iisnnl  practice  of  _ 
mercha'nts,  to  liave  answered  it  by  the  firsts  post^  whigh  left^vh  eiijool 
at  three  o'6l6(L'l?  prMTon  that  day.  A  letter  so  despatched  would  be 
due  in  Glasgow  at  two  o'clock  p.m.  on  the  31st  of  January' ;  another 
post  left  Liverpool  for  Glasgow  every  da}'^  at  one  o'clock  a.  m.,  and 
letters  to  be  despatched  b}-  that  post  must  be  put  into  the  office  during 
the  preceding  evening,  and  if  anv  letter  had  been  sent  ly  tnat  post  on 
the  morning  of  the  31st,  it  must  have  been  delivered  in  Glasgow  in  the 
regular  course  of  post  at  eight  o'clock  in  the  morning  of  the  1st  ot 
February.  As  no  communication  from  Messrs.  Higgins  amved  by 
either  of  these  posts,  IMessrs.  Dunlop  contended  that  the}^  were  entitled 
to  treat  their  otler  as  not  accepted,  and  that  they  were  not  bound  to 
wait  until  the  third  post  delivered  in  Glasgow  at  two  o'clock  p.  m.  of 
Saturday,  the  1st  of  Fcbruarj^  (at  which  time  Messrs.  Higgins'  lettei 
did  actnall}'  arrive),  belbre  they  entered  into  other  contracts, the  taking 
of  which  would  disable  them  from  performing  the  contract  they  had 
olfered  to  Messrs.  Higgins.^ 

Mr.  Bethell  and  Mr.  Anderson^  for  the  appellants. 

Mr.  Stuart  Wortley  and  Mr.  Hugh  Bill,  for  the  respondents,  were 
not  called  on. 

The  Lord  Chancellor.^  The  case  certainly  appears  to  me  one 
which  requires  great  ingenuity  on  the  part  of  the  appellants,  because 
I  do  not  think  that,  in  the  facts  of  the  case,  there  is  anything  to 
warrant  the  appeal.  The  contest  arises  from  an  order  sent  froni^ 
Livsj^uxjflo  Glasgow,  or  rather  a  proposition  sent  frflja  Q-lasgow  to 
Liverpool,  and  acceptecT by  tng  house  at  Liverpool.  It  is  unnecessary 
to  go  earlier  IMo  tHe  history  of  the  case  than  the  letter  sent  fiom 
Liverpool  by  Higgins,  bearing  date  the  31st  of  January.  A  propo- 
sltiQjj-  had  been  made  hv  the  filasgow  house  of  Dunlon.  Wijpon^  i^ 
Co..  to  sell  2^000  tons  nf  pip^-irnn.  The,  answer  is  of  that  date^  o.f^ 
the  31st  of  January;  "  Gentlemeiu-jye  wiU  HY^  tiip  ^^^000±nns,  pifrs, 

1  The  statement  of  the  proceedings  in  the  lower  courts  have  been  omitted. 

2  Lord  Cotteuham.     Portions  of  the  opinion  are  omitted. 


92 


DUNLOP   V.   HIGGINS. 


[chap.  I. 


you  offer  us."  Another  part  of  the  letter  refers  to  other  arrange- 
ments; but  "there  is  a  distinct  and  positive  offer  to  take  the  2,000 
tons  of  pigs-  To  that  letter  there  is  annexed  a  postscript  in  which 
they  say,  "We  have  accepted  your  offer  unconditionally;  but  we  hope 
you  will  accede  to  our  request  as  to  delivery  and  mode  of  payment  by 
two  months'  bill." 

That,  my  Lords,  therefore,  is  an  unconditional  acceptance,  by  the 
letter  dated  the  31st  of  January,  which  was  proved  to  have  been  put 
into  the  post-office  at  Liverpool  on  the  30th ;  but  it  was  not  delivered, 
oyjng  tothe  state  of  severe  frost  at  that  time,  which  delayed  the 
mail  from  reaching  Glasgow  at  the  time  at  which,  in  the  ordinary 
course,  it  would  have  arrived  there.  The  letter  having  been  put  in 
on  the  30th  of  January,  it  ought  to  have  arrived  at  Glasgow  on  the 
following  day,  but  it  did  not  arrive  till  the  1st  of  February. 

The  first  question  raised  by  the  first  exception  applies  not  to  the 
summing  up  of  the  learned  Judge,  but  to  the  admission  of  evidence 
by  him. 

My  Lords,  the  exception  states,  "that  the  pursuers  having  admitted 
that  they  were  bound  to  answer  the  defenders'  offer  of  the  28th,  by 
letter  written  and  posted  on  the  30th,  and  the  only  answer  received 
by  the  defenders  being  admitted  to  be  dated  on  the  3l8t  of  January, 
and  received  in  Glasgow  by  the  mail  which  in  due  course  ought  to 
bring  the  Liverpool  letters  of  the  31st,  but  not  Liverpool  letters  of 
the  30th,  it  is  not  competent  in  a  question  as  to  the  right  of  the 
defenders  to  withdraw  or  fall  from  the  offer,  to  prove  that  the  letter 
bearing  date  the  31gt  of  January  was  written  and  despatched  from 
Liverpool  on  the  30th,  and  prevented  by  accident  from  reaching 
Glasgow  in  due  course,  especially  as  it  is  not  alleged  that  the  de- 
fenders were  aware  (previous  to  the  3d  of  February)  of  any  such 
accident  having  occurred." 

The  exception  is  that  the  learned  Judge  was  wrong  in  permitting 
the  pursuer  to  explain  his  mistake.     Xll£  proposition  is,  that  if  a  man 

j)n  a  particular  da^y.  and  by  mistake  puts 


a  date  in  advance,  he  is  to  be  bound  by  bis  error,  whettier~it  produces 
xaJaSueTTo^  the  other  party  or  not.  It  is  unnecessary  to  do  more  than 
state  this  proposition  in  order  to  induce  you  to  assent  to  the  view  I 
take  of  the  objection,  and  to  come  to  the  conclusion  that  the  learned 
Judge  was  right  in  allowing  the  pursuer  to  go  into  evidence  to  show 
the  mistake. 

The  next  exception  to  be  considered  is  the  second,  and  that  raises  a 
more  important  question,  though  not  one  attended  with  much  difficulty. 
The  exception  is,  that  his  Lordship  did  direct  the  jury  in  point  of  law, 
thatJL-thg^  pursuers  poslfid-Xljeir  acceptance  of  t(hp  nffpr  in  Hup  timft^ 
according  to  the  usage  oftradeTthey  are  not  responsible  for  any  cstf  u- 
alties  in  the  post-oflice  establishment. 


Now,  there  may  be  some  little  ambiguit}''  in  the  construction  of  that 
proposition.    It  proceeds  on  the  assumption  that,  by  the  usage  of  trade, 


SECT.    I.]  DUNLOP    V.   niGGlNS.  93 

an  answer  ought  to  have  been  returned  by  the  post,  and  that  the  30th 
was  the  right  day  on  which  that  answer  ought  to  have  been  notified. 
'^bcn^  comes  tlie  (tueistion,  whether  under  those  circumstances,  _ that- 
Ij^ing  the  usa^e  of  tradeVthe  l'act_of'_the_JLetti;r  being  iielayeti,  not  by_ 
lheactof_the_  party  sending  it,  but  by  an  accident  connected  with  the 
{jost,  the  party  so  pulliujj;Jjie  Iettur^in_oiL_tl^e  right  da3'  is  to  lose  the_ 
benefit  which  would  have_belonged  to  him„if  the  letter_hadjarrived  ia. 
4ue  course  ? 

1  cannot  conceive,  if  that  is  the  right  construction  of  the  direction 
of  the  learned  Judge,  how  an}'  doubt  can  exist  on  the  point.  If  a 
party  does  all  that  he  can  do,  that  is  aU  that  is  called  for.  If  there  is 
a  usage  of  trade  to  accept  such  an  offer,  and  to  return  an  answer  to 
such  an  offer,  and  to  forward  it  In'  means  of  the  post,  and  if  the  party 
accepting  the  otfer  puts  his  letter  into  the  post  on  the  correct  day,  has 
he  not  done  every  thing  he  was  bound  to  do  ?  How  can  he  be  respon- 
sible for  that  over  which  he  has  no  control  ?  It  is  not  the  same  as  if 
the  date  of  the  i)arty's  acceptance  of  the  offer  had  been  the  subject  of 
a  special  contract :  as  if  the  contract  had  been,  "  I  make  you  this  offer, 
but  3'ou  must  return  me  an  answer  on  the  30th,  and  on  the  earliest 
post  of  that  da}'."  Xhe  usage  of  trade  would  require  an  answer  on  the 
day  on  which  the  offer  was  received,  and  Messrs.  Higgins,  therefore, 
did  on  the  30th,  in  proper  time,  return  an  answer  by  the  right  convey- 
ance ^=^tbe-xmst-office. 

If  that  was  not  correct,  and  if  a'Ou  were  to  have  reference  now  to 
any  usage  constituting  the  contract  between  the  paities  a  specific  con- 
tract, it  is  quite  clear  to  me  that  the  rule  of  law  woidd  necessarily  be 
that  which  has  obtained  by  the  usage  of  trade.  It  has  been  so  decided 
in  cases  in  P2ngland,  and  none  has  been  cited  from  Scotland  which  con- 
troverts that  proposition ;  but  the  cases  in  England  put  it  beyond  all 
doubt.  It  is  not  disputed  —  it  is  a  very  frequent  occun-ence  —  that  a 
party  having  a  bill  of  exchange,  which  he  tenders  for  payment  to  the 
acceptor,  and  pa3'ment  is  refused,  is  bound  to  give  the  earliest  notice  to 
the  drawer.  That  person  may  be  resident  man}'  miles  distant  from  him  ; 
if  he  puts  a  letter  into  the  post  at  the  right  time,  it  has  been  held  quite 
sufficient ;  he  has  done  all  that  he  is  expected  to  do  as  far  as  he  is  con 
cemed  ;  he  has  put  the  letter  into  the  i)ost,  and  whether  that  letter  be 
delivered  or  not,  is  a  matter  quite  immaterial,  because  for  accidents 
happening  at  the  post-office  he  is  not  responsible. 

My  Lords,  the  case  of  Stocken  v.  Collin  ^  is  precisely  a  case  of  that 
nature,  where  the  letter  did  not  arrive  in  time.  In  that  case  Baron 
Parke  says,  "  Tt.  wns;  a.  r^'iest^^Ti  fr>f  j|]P  jnry  \rhp|jn.]-  |h»  ^^^ter  was  put 
into  the^  post-office  jn  time  for  delivery  on  the  ^Sfh.  The  post-office 
mark  certainly  raised  a  presumption  to  the  contrary,  but  it  was  not 
conclusive.  The  jurors  have  beUeved  the  testimon}-  of  the  witness  who 
posted  the  letter,  and  the  verdict  was  therefore  right.  If  a  party  puts 
a  notice  of  dishonor  into  the  post,  so  that  in  due  course  of  delivery  it 

^  7  Meesuu  &  '.Velsby,  515. 


P4  DUNLOP   V.    HIGGINS.  [CHAP.    I. 

would  arrive  in  time,  he  has  done  all  that  can  he  required  of  nira,  and 
it  is  no  fault  of  his  if  dela}-  occurs  in  the  delivery."  Baron  Alderson 
says,  "  The  party  who  sends  the  notice  is  not  answerable  for  the  blunder^ 
of  the  post-otlice.  I  remember  to  "have  held  scTTll  U'-i'tlHtTon  the  Norfolk 
HlrcuitTwhere^aTnotice  addressed  to  Norwich  had  been  sent  to  Wai'wick. 
If  the  doctrine  that  the  post-olfice  is  only  the  agent  for  the  delivery  of 
the  notice  was  correct,  no  one  could  safeh*  avail  himself  of  that  mode 
of  transmission.  The  real  question  is  whether  the  party  has  been 
guilty  of  laches." 

There  is  also  the  other  case  which  has  been  referred  to,  which  declares 
the  same  doctrine,  the  case  of  Adams  v.  Lindsell.  That  is  a  case 
where  the  letter  went,  by  the  eiTor  of  the  party  sending  it,  to  the 
wrong  place,  but  the  party  receiving  it  answered  it,  so  far  as  he  was 
concerned,  in  proper  time.  The  party,  however,  who  oi'iginally  sent 
the  offer  not  receiving  the  answer  in  proper  time,  thought  he  was  dis- 
charged, and  entered  into  a  contract  and  sold  the  goods  to  somebody 
else.  The  question  was,  whether  the  party  making  the  offer  had  a 
right  to  withdraw  after  notice  of  acceptance.  He  sold  the  goods  after 
the  party  had  written  the  letter  of  acceptance,  but  before  it  arrived  he 
said,  "  I  withdraw  my  offer."  Therefore  he  said,  "before  I  received 
your  acceptance  of  my  offer  I  had  withdrawn  it."  And  that  raised  the 
question  when  the  acceptance  took  place,  and  what  constituted  the 
acceptance.  It  was  argued,  that  "till  the  plaintiff's  answer  was  actu- 
ally received,  there  could  be  no  binding  contract  between  the  parties, 
and  that  before  then  the  defendants  had  retracted  their  offer  by  selling 
the  wool  to  other  persons."  But  the  Court  said,  "  If  that  were  so,  no 
contract  could  ever  be  completed  by  the  post,  for  if  the  defendants 
were  not  bound  by  their  offer  when  accepted  by  the  plaintiffs  till  the 
answer  was  received,  then  the  plaintiffs  ought  not  to  be  bound  till  after 
they  had  received  the  notification  that  the  defendants  had  received 
their  answer  and  assented  to  it.  And  so  it  might  go  on  ad  infinitum.. 
The  defendants  must  be  considered  in  law  as  making,  during  every 
instant  of  the  time  their  letter  was  travelling,  the  same  identical  offer 
to  the  plaintiffs,  and  then  the  contract  is  completed  by  the  acceptance 
of  it  by  the  latter." 

Those  two  cases  leave  no  doubt  at  all  on  the  subject.  Common  sense 
tells  us  that  transactions  cannot  go  on  without  such  a  rule,  and  these 
cases  seem  to  be  the  leading  cases  on  the  subject,  and  we  have  heard 
no  authoritj^  cited  which  in  the  least  degree  affects  the  principle  on 
which  they  proceed.  The  law  of  Scotland  appears  to  be  the  same  as 
the  law  of  England,  for  Mr.  Bell's  Commentaiy  lays  down  the  same 
rule  as  existing  in  Scotland,  and  notliing  lias  been  stated  to  us  in  con- 
tradi(;tion  of  his  opinion. 

It   vas   ordered    tluit   the.   interlocutor   comjdained  of  should  be 
affirmed  with  costs. 


SECT.   I.]      HOUSEHOLD   FIRE,   ETC.,   INS.   CO.   V.   GRANT.  95 


THE    HOUSEHOLD    FIRE   AND   CARRIAGE   ACCIDENT 
INSURANCE  COMPANY  (LIMITED)  v.  GRANT. 

In  the  Exchequer  Division,  Court  of  Appeal,  July  1,  1879. 

[Reported  in  4  Exchequer  Division,  216.] 

Action  to  recover  £94  15s.,  being  the  balance  due  upon  100  shares 
allotted  to  the  defendant  on  the  25th  of  October,  1874,  in  pursuance  of 
an  application  from  the  defendant  for  such  shares,  dated  the  30th  of 
September,  1874. 

At  the  trial  before  Lopes,  J.,  during  the  Middlesex  Sittings,  1878, 
the  following  facts  were  proved.  In  1874  one  Kendrick  was  acting  in 
Glamorganshire  as  the  agent  of  the  company  for  the  placing  of  their 
shares,  and  on  the  30th  of  September  the  defendant  handed  to  Kendrick 
an  application  in  writing  for  shares  in  the  plaintiffs'  company,  which 
stated  that  the  defendant  had  paid  to  the  bankers  of  the  company  £5, 
being  a  deposit  of  Is.  per  share,  and  requesting  an  allotment  of  100 
shares,  and  agreeing  to  pay  the  further  sum  of  195.  per  share  within 
twelve  months  of  the  date  of  the  allotment.  Kendrick  duly  forwarded 
this  application  to  the  plaintiffs  in  London,  and  the  secretar}'  of  the 
company  on  the  20th  of  October,  1874,  made  out  the  letter  of  allotment 
in  favor  of  the  defendant,  which  was  posted  addressed  to  the  defendant 
at  his  residence,  16  Herbert  Street,  Swansea,  Glamorganshire;  his 
name  was  then  entered  on  the  register  of  shareholders.  This  letter  of 
allotment  never  reached  the  defendant.  The  defendant  never  paid  the 
£5  mentioned  in  his  application,  but  the  plaintiffs'  compan}'  being  in- 
debted to  the  defendant  in  the  sum  of  £5  for  commission,  that  sum  was 
duly  credited  to  his  account  in  their  books.  In  July,  1875,  a  dividend 
at  the  rate  of  2^  per  cent  was  declared  on  the  shares,  and  in  February, 
1876,  a  further  dividend  at  the  same  rate  ;  these  dividends,  amounting 
altogether  to  the  sura  of  5s.,  was  also  credited  to  the  defendant's 
account  in  the  books  of  the  plaintiffs'  company.  Afterwards  the  com- 
pany went  into  liquidation,  and  on  the  7th  of  December,  1877,  the 
official  liquidator  applied  for  the  sum  sued  for  from  the  defendant ;  the 
defendant  declined  to  pay  on  the  ground  that  he  was  not  a  shareholder. 

On  these  facts  the  learned  judge  left  two  questions  to  the  jury : 

1,  Was  the  letter  of  allotment  of  the  20th  of  October  in  fact  posted? 

2.  "Was  the  letter  of  allotment  received  by  the  defendant?     The  jury 
found  the  first  question  in  the  affirmative,  and  the  last  in  the  negative. 

The  learned  judge  resei'\;^gLlbe  caaa  for_fin4h£r  conaideratinn.  and 
after  argujnpnt.  rL^wrriftf^udffment  to  bp  f  ntprpd  frt^  the  plaintiff,  nn  thfl 

anthorit^IpfDunlop  v.  Higgins,  1  H.  L.  C.  381. 

The  defendant  appeale(^. 

Finlay  and  Dillwyn  for  the  defendant. 

Wilberforce  and  O.  Arbuthnot  {W.  G.  Harrison,  Q.  C,  with  them), 
for  the  plaintiffs. 


96  HOUSEHOLD   FIRE,   ETC.,   INS.   CO.    V.   GRANT.      [CBAP.    I. 

Thesiger,  L.  J.^  In  this  case  the  defendant  made  an  application 
for  shares  in  the  plaintiffs'  company  under  circumstances  from  which 
we  must  imply  that  he  authorized  the  company,  in  the  event  of  their 
allotting  to  him  the  shares  applied  for,  to  send  the  notice  of  allotment 
by  post.  The  company  did  allot  him  the  shares,  and  duly  addressed 
to  him  and  posted  a  letter  containing  the  notice  of  allotment,  but 
upon  the  finding  of  the  jury  it  must  be  taken  that  the  letter  never 
reached  its  destination.  In  this  state  of  circumstances  Lopes,  J., 
has  decided  that  the  defendant  is  liable  as  a  shareholder.  He  based 
his  decision  mainly  upon  the  ground  that  the  point  for  his  considera- 
tion was  covered  by  authority  binding  upon  him,  and  I  am  of  opinion 
that  he  did  so  rightly,  and  that  it  is  covered  by  authority  equally 
binding  upon  this  court. 

The  leading  case  upon  the  subject  is  Dunlop  v.  Higgins,  1  H.  L.  C. 
381.  .  .  .  But  if  Dunlop  v.  Higgins,  1  H.  L.  C.  381,  were  out 
of  the  way,  Harris's  Case,  Law  Rep.  7  Ch.  587,  would  still  go 
far  to  govern  the  present.  There  it  was  held  tiiat.  \\^^P■  acceptance 
of  the  offer  at  all  events  binds  both  parties  from  jhe  time  of  the 
aofipptanne  bpi>^  pos^pd^  nnd  SO  as  tQ  jaievent  any_jL:atractaIl^TrTrf' the 
offer  beinp:  of  .effect  after  the  acceptance  has  been  posted.  Now,  what- 
ever in  abstract  discussion  may  be  said  as  to  the  legal  notion  of  its 
being  necessary,  in  order  to  the  effecting  of  a  valid  and  binding  con- 
tract, that  the  minds  of  the  parties  should  be  brought  together  at  one 
and  the  same  moment,  that  notion  is  practically  the  foundation  of 
English  law  upon  the  subject  of  the  formation  of  contracts.  Unless, 
therefore,  a  contract  constituted  by  correspondence  is  absolutely  con- 
cluded at  the  moment  that  the  continuing  offer  is  accepted  by  the  per- 
son to  whom  the  offer  is  addressed,  it  is  difficult  to  see  how  the  two 
minds  are  ever  to  be  brought  together  at  one  and  the  same  moment. 
This  was  pointed  out  by  Lord  EUenborough  in  the  case  of  Adams  u. 
Lindsell,  1  B.  &  A.  681,  which  is  recognized  authority  upon  this  branch 
of  the  law.  But  on  the  other  hand  it  is  a  principle  of  law,  as  well  estab- 
lished as  the  legal  notion  to  which  I  have  referred,  that  the  minds  of 
the  two  parties  must  be  brought  together  by  mutual  communication. 
An  acceptance  which  only  remains  in  the  breast  of  the  acceptor,  with- 
out being  actually  and  by  legal  implication  communicated  to  the  offerer, 
is  no  binding  acceptance.  How  then  are  these  elements  of  law  to  be 
harmonized  in  the  case  of  contracts  formed  by  correspondence  through 
the  post?  I  see  no  better  mode  than  that  of  treating  the  post  office  as 
the  agent  of  both  parties,  and  it  was  so  considered  by  Lord  Romilly  in 
Hebb's  case,  Law  Rep.  4  Eq.  at  p.  12,  when  in  the  course  of  his  judg- 
ment he  said:  "  Dunlop  v.  Higgins,  1  H.  L.  C.  381,  decides  that  the 
Viflsting  7^  '\  1^<-^Qr-a.p.cppi,iugf  an  offer  constitutes  a  binding  contract, 
but  the  reason  of  that  is,  that  the  post  office  is  the  common  agent  of 
both  parties."  Alderson,  B.,  also,  in  Stocken  v.  CoUin,  7  M.  &  W.  at 
p.  516,  a  case  of  notice  of  dishonor,  and  the  case  referred  to  by  Lord 

1  A  portion  of  the  opiaion  which  discusses  the  effect  of  Dunlop  v.  Higgins  is 
omitted.     The  concurring  opinion  of  Baggallay,  L.  J.,  is  also  omitted. 


SECT.   I.]      HOUSEHOLD   FIRE,   ETC.,   INS.   CO.   V.   GRANT 


97 


Cottenham,  says  :  "  If  the  doctrine  that  the  post  office  is  only  the  agent 
for  the  delivery  of  the  notice  were  correct,  no  one  could  safely  avail 
himself  of  that  mode  of  transmission."  But  if  the  post  pffice  be  such 
gommon  agent,  then  it  seems  to  me  to  follow  that,  as  soon  as  the  letter 
of  acceptance  is  delivered  to  the  post  office,  the  contract  is  made  as 
compTele  and  flnai  and  absolutely  bindiag..aa4.f  the  acceptor  had  put  his" 
i^tpv  im.n  thp  hMTiTls  of  a.  messenp;ejrseut_bv  the  offerer  himself  as  his 

What  other" 


tn  be  adiFpteg^short  of  holding  that  the"  contract  is  not  com- 
plete by  acceptance  until  and  except  from  the  time  that  the  letter  con- 
taining the  acceptance  is  delivered  to  the  offerer,  —  a  principle  which 
has  been  distinctly  negatived?  This  difficult}'  was  attempted  to  be  got 
over  in  the  British  and  American  Telegraph  Co.  v.  Colson,  Law  Rep. 
6  Ex.  108,  which  was  a  case  directly  on  all  fours  with  the  present,  and 
in  which  Kelly,  C.  B.,  is  reported  to  have  said,  "  It  may  be  that  in 
general,  though  not  in  all  cases,  a  contract  takes  effect  from  the  time 
of  acceptance  and  not  from  the  subsequent  notification  of  it.  As  in  the 
case  now  before  the  court,  if  the  letter  of  allotment  had  been  delivered 
to  the  defendant  in  the  due  course  of  the  post  he  would  have  become  a 
shareholder  from  the  date  of  the  letter.  And  to  this  effect  is  Potter  v. 
Sanders,  6  Hare,  1.  And  hence  perhaps  the  mistake  has  arisen  that 
the  contract  is  binding  upon  both  parties  from  the  time  when  the  letter 
is  written  and  put  into  the  post,  although  never  delivered  ;  whereas, 
although  it  may  be  binding  from  the  time  of  acceptance,  it  is  only  bind- 
ing at  all  when  afterwards  duly  notified."  But  with  deference  I  would 
ask  how  a  man  can  be  said  to  be  a  shareholder  at  a  time  before  he  was 
bound  to  take  any  shares  ;  or,  to  put  the  question  in  the  form  in  which 
it  is  put  by  Mellish,  L.  J.,  in  Harris's  case,  Law  Rep.  586,  at  p.  596, 
how  there  can  be  an}-  relation  back  in  a  case  of  this  kind,  as  there  may  be 
in  bankruptcy.  If,  as  the  Lord  Justice  said,  the  contract  after  the  letter 
has  arrived  in  time  is  to  be  treated  as  having  been  made  from  the  time 
the  letter  is  posted,  the  reason  is  that  the  contract  was  actually  made 
at  the  time  when  the  letter  was  posted.  The  principle  indeed  laid  down 
in  Harris's  case,  Law  Rep.  586,  at  p.  596,  as  well  as  in  Dunlop  v. 
Higgins,  1  H.  L.  C.  381,  can  really  not  be  reconciled  with  the  decision 
in  the  British  and  American  Telegraph  Co.  v.  Colson,  Law  Rep.  6  Ex. 
108.  James,  L.  J.,  in  the  passage  I  have  already  quoted,  affirms_tbe 
propflsitiQiL^at  when  once  thg' abceptanceli§_j^ted  neither  party  canj" 
afterwards  escape  Trorn'TRe  mnt.ract.  and  refe^,  wttli  approval,  to 
Hebb'.s  case.  Law  Rep.  4  Eg.  9.  There  a  distinction  was  taken  b}'  the 
Master  of  the  Rolls,  that  the  companj-  chose  to  send  the  letter  of  allot- 
ment to  their  own  agent,  who  was  not  authorized  b}'  the  applicant  for 
shares  to  receive  it  on  his  behalf,  and  who  never  delivered  it,  but  he  at 
the  same  time  assumed  that  if,  instead  of  sending  it  through  an  autho- 
rized ageut  they  had  sent  it  through  the  post  office,  the  applicant  would 
have  been  bound,  although  the  letter  had  never  been  delivered.  Mellish, 
L.  J.,  really  goes  as  far,  and  states  forcibly  the  reasons  in  favor  of  thirf 

VOL.   I.  —  7 


98  HOUSEHOLD   FIRE,    ETC.,    INS.    CO.    V.    GRANT.       [CHAP.   X. 

view.  The  mere  suggestion  thrown  out  (at  the  close  of  his  judgment, 
at  p.  597),  when  stopping  short  of  actually  overruling  the  decision  in 
the  British  and  American  Telegraph  Co.  v.  Colson,  Law  Rep.  G  Ex. 
108,  that  although  a  contract  is  complete  when  the  letter  accepting  an 
otfer  is  posted,  yet  it  may  be  subject  to  a  condition  subsequent  that,  if 
the  letter  does  not  arrive  in  due  course  of  post,  then  the  parties  ma}'  act 
on  the  assumption  that  the  offer  has  not  been  accepted,  can  hardly, 
when  contrasted  with  the  rest  of  the  judgment,  be  said  to  represent  his 
own  opinion  on  the  law  upon  the  subject.  The  contract,  as  he  says, 
is  actually  made  when  the  letter  is  posted.  The  acceptor,  in  uostliigL 
the  letter.,  has,  to  use  the  language  of  Lord  Blacicburn,  in  Brogden  v. 
Directors  of  Metropolitan  Ry.  Co.,  2  App.  Cas.  660,  691,  '■'  [jut  itj)ut 
of  his  coptco]  a.T]d  done  .an  extraneous  act  which  clenches  the  matte 
and  sho'wH  bpy^pd  all  dnnbt  t,hat  e'ach  sidp.  is"  Qound/*  How  then  can 
a  casualty  in  the  post,  whether  resulting  in  delay,  which  in  commercial 
transactions  is  often  as  bad  as  no  delivery,  or  in  non-delivery,  unbind 
the  parties  or  unmake  the  contract?  To  me  it  appears  that  in  practice 
a  contract  complete  upon  the  acceptance  of  an  otler  being  posted,  but 
liable  to  be  put  an  end  to  by  an  accident  in  the  post,  would  be  more 
mischievous  than  a  contract  only  binding  upon  the  parties  to  it  upon 
the  acceptance  actually  reaching  the  offerer ;  and  I  can  see  no  principle 
of  law  from  which  such  an  anomalous  contract  can  be  deduced. 

There  is  no  doubt  that  the  implication  of  a  complete,  final,  and  abso- 
lutely binding  contract  being  formed  as  soon  as  the  acceptance  of  an 
offer  is  posted,  may  in  some  cases  lead  to  inconvenience  and  hardship. 
But  such  there  must  be  at  times  in  every  view  of  the  law.  It  is  impos- 
sible in  transactions  which  pass  between  parties  at  a  distance,  and  have 
to  be  carried  on  through  the  medium  of  correspondence,  to  adjust  con- 
flicting rights  between  innocent  parties,  so  as  to  make  the  consequences 
of  mistake  on  the  part  of  a  mutual  agent  fall  equall}'  upon  the  shoulders 
of  both.  At  the  same  time  I  am  not  prepared  to  admit  that  the  impli- 
cation in  question  will  lead  to  any  great  or  general  inconvenience  or 
hardship.  An  offerer,  if  he  chooses,  may  always  make  the  formation 
of  the  contract  which  he  proposes  dependent  upon  the  actual  communi- 
cation to  himself  of  the  acceptance.  If  he  trusts  to  the  post  he  trusts 
to  a  means  of  communication  which,  as  a  rule,  does  not  fail,  and  if  no 
answer  to  his  offer  is  received  by  him,  and  the  matter  is  of  importance 
to  him,  he  can  make  inquiries  of  the  person  to  whom  his  offer  was 
addressed.  On  the  other  hand,  if  the  contract  is  not  finally  concluded 
except  in  the  event  of  the  acceptance  actuallj'  reaching  the  offerer,  the 
door  would  be  opened  to  the  perpetration  of  much  fraud,  and,  putting 
aside  this  consideration,  considerable  delay  in  commercial  transactions, 
in  which  despatch  is,  as  a  rule,  of  the  greatest  consequence,  would  be 
occasioned  ;  for  the  acceptor  would  never  be  entirely  safe  in  acting  upon 
his  acceptance  until  he  had  received  notice  that  his  letter  of  acceptance 
had  reached  its  destination. 

Upon  balance  of  conveniences  and  inconveniences  it  seems  to  me. 


SECT,   I.]      HOUSEHOLD   FIRE,   ETC.,   INS.    CO.   V.   GRANT.  99 

applying  with  slight  alterations  the  language  of  the  Supreme  Court  of 
the  United  States  in  Tayloe  v.  Merchants'  Fire  Insurance  Co.,  9  Howard 
S.  Ct.  Rep.  390,  more  consistent  with  the  acts  and  declarations  of  the 
parties  in  this  case  to  consider  the  contract  complete  and  absolutely 
binding  on  the  transmission  of  the  notice  of  allotment  through  the  post, 
as  the  medium  of  communication  that  the  parties  themselves  contem- 
plated, instead  of  postponing  its  completion  until  the  notice  had  been 
received  by  the  defendant.  Upon  principle,  therefore,  as  well  as  author- 
it}-,  I  think  that  the  judgment  of  Lopes,  J.,  was  right,  and  should  be 
affirmed,  and  that  this  appeal  should  therefore  be  dismissed. 

Bramwell,  L.  J.  The  question  in  this  case  is  not  whether  the  post 
office  was  a  proper  medium  of  communication  from  the  plaintiffs  to  the 
defendant.  There  is  no  doubt  that  it  is  so  in  all  cases  where  personal 
service  is  not  required.  It  is  an  ordinary  mode  of  communication,  and 
ever}'  person  who  gives  any  one  the  right  to  communicate  with  him, 
gives  the  right  to  communicate  in  an  ordinar}'  manner,  and  so  in  this 
way  and  to  this  extent,  that  if  an  offer  were  made  b}'  letter  in  the 
morning  to  a  person  at  a  place  within  half  an  hour's  railwa}-  journey  of 
the  offerer,  I  should  say  that  an  acceptance  by  post,  though  it  did  not 
reach  the  offerer  till  the  next  morning,  would  be  in  time.  Nor  is  the 
question  whether,  when  the  letter  reaches  an  offerer,  the  latter  is  bound 
and  the  bargain  made  from  the  time  the  letter  is  posted  or  despatched, 
whether  by  post  or  otherwise.     The  question  in  this  case  is  different. 

1  will  presently  state  what  in  m}'  judgment  it  is.  Meanwhile  I  wish  to 
mention  some  elementar}'  propositions  which,  if  carefull}'  borne  in  mind, 
will  assist  in  the  determination  of  this  case  :  — 

First.  Where  a  proposition  to  enter  into  a  contract  is  made  and 
accepted,  it  is  necessary,  as  a  rule,  to  constitute  the  contract,  that  there 
should  be  a  communication  of  that  acceptance  to  the  proposer.  Per 
Brian,  C.  J.,  and  Lord  Blackburn,  Brogden  v.  Metropolitan  Rj-.  Co., 

2  App.  Cas.  at  p.  592. 

Secondly.     That  the  present  case  is  one  of  proposal  and  acceptance. 

Thirdly.  That  as  a  consequence  of  or  involved  in  the  first  propo- 
sition, if  the  acceptance  is  written  or  verbal,  i.  e.  is  by  letter  or  mes- 
sage, as  a  rule  it  must  reach  the  proposer  or  there  is  no  communication, 
and  so  no  acceptance  of  the  offer. 

Fourthly.  That  if  there  is  a  difference  where  the  acceptance  is  by  a 
letter  sent  through  the  post  which  does  not  reach  the  offerer,  it  must  be 
b}'  virtue  of  some  general  rule  or  some  particular  agreement  of  the 
parties.  As,  for  instance,  there  might  be  an  agreement  that  the 
acceptance  of  the  proposal  may  be  b\'  sending  the  article  offered  by 
the  proposer  to  be  bought,  or  hanging  out  a  flag  or  sign  to  be  seen  by 
the  offerer  as  he  goes  by,  or  leaving  a  letter  at  a  certain  place,  or  any 
other  agreed  mode  ;  and  in  the  same  way  there  might  be  an  agreement 
that  dropping  a  letter  in  a  post  pillar  box  or  other  place  of  reception 
should  suffice. 

Fifthly.     That  as  there  is  no  such  special  agreement  in  this  case,  the 


100  HOUSEHOLD   FIKE,   ETC.,   INS.   CO.   V.   GRANT.      [CHAP.   I. 

defendant,  if  bound,  must  be  bound  by  some  general  rule  which  makes 
a  difference  when  the  post  office  is  employed  as  the  means  of  communi- 
cation. 

Sixthl}'.  That  if  there  is  any  such  general  rule  applicable  to  the 
communication  of  the  acceptance  of  offers,  it  is  equally  applicable  to  all 
communications  that  may  be  made  b}'  post.  Because,  as  I  have  said, 
the  question  is  not  whether  this  communication  may  be  made  by  post. 
If,  therefore,  posting  a  letter  which  does  not  reach  is  a  sufficient  com- 
munication of  acceptance  of  an  offer,  it  is  equally'  a  communication  of 
everything  else  which  may  be  communicated  by  post,  e.  g.  notice  to 
quit.  It  is  impossible  to  hold,  if  I  offer  my  landlord  to  sell  him  some 
ha3%  and  he  writes  accepting  my  offer,  and  in  the  same  letter  gives  me 
notice  to  quit,  and  posts  his  letter,  which,  however,  does  not  reach  me, 
that  he  has  communicated  to  me  his  acceptance  of  my  oflfer,  but  not  his 
notice  to  quit.  Suppose  a  man  has  paid  his  tailor  by  check  or  bank-note, 
and  posts  a  letter  containing  a  check  or  bank-note  to  his  tailor,  which 
never  reaches  ;  is  the  tailor  paid?  If  he  is,  would  he  be  if  he  had  never 
been  paid  before  in  that  way?  Suppose  a  man  is  in  the  habit  of  send- 
ing checks  and  bank-notes  to  his  banker  by  post,  and  posts  a  letter 
containing  checks  and  bank-notes  which  never  reaches.  Is  the  banker 
liable?  Would  he  be  if  this  was  the  first  instance  of  a  remittance  of 
the  sort?  In  the  cases  I  have  supposed,  the  tailor  and  banker  may 
have  recognized  this  mode  of  remittance  by  sending  back  receipts  and 
putting  the  mone}'  to  the  credit  of  the  remitter.  Are  they  liable  with 
that?  Are  the}'  liable  without  it?  Xt^e  question  then  is,  Is  posting  a_ 
letteiLgjiich  is  never  received  a  communication  to  the  person  addressed, 
or  an  equivalent,  or  something  which  dispenses  with_it^?  It  is  for 
those  who  say  it  is  to  make  good  their  contention.  I  ask  why  is  it? 
My  answer  beforehand  to  any  argument  that  may  be  urged  is,  that  it  is 
not  a  communication,  and  that  there  is  no  agreement  to  take  it  as  an 
equivalent  for  or  to  dispense  with  a  communication  ;  that  those  who 
affirm  the  contrary  sa}'  the  thing  which  is  not ;  that  if  Brian,  C.  J., 
had  had  to  adjudicate  on  the  case,  he  would  deliver  the  same  judgment 
as  that  reported  ;  that  because  a  man  who  may  send  a  communica- 
tion by  post  or  otherwise  sends  it  by  post,  he  should  bind  the  person 
addressed  though  the  communication  never  reaches  him,  while  he 
would  not  so  bind  him  if  he  had  sent  it  by  hand,  is  impossible.  There 
is  no  reason  in  it.  It  is  simpl}-  arbitrary.  I  ask  whether  any  one  who 
thinks  so  is  prepared  to  follow  that  opinion  to  its  consequence.  Suppose 
the  offer  is  to  sell  a  particular  chattel,  and  the  letter  accepting  it  never 
arrives,  is  the  property  in  the  chattel  transferred  ?  Suppose  it  is  to  sell 
an  estate  or  grant  a  lease,  is  the  bargain  completed?  The  lease  might 
be  such  as  not  to  require  a  deed  ;  could  a  subsequent  lessee  be  ejected 
by  the  would-be  acceptor  of  the  offer  because  he  had  posted  a  letter? 
Suppose  an  article  is  advertised  at  so  much,  and  that  it  would  be  sent 
on  receipt  of  a  post-office  order.  Is  it  enough  to  post  the  letter?  If 
the  word  "  receipt "  is  relied  on  is  it  really  meant  that  that  makes  a 


SECT.    I.]       HOUSEHOLD   FIRE,    ETC.,   INS.    CO.   V.    GRANT.  101 

difference  ?  If  it  should  be  said  let  the  offerer  wait,  the  answer  is,  may- 
be he  may  lose  his  market  meanwhile.  Besides,  his  offer  ma}-  be  by 
advertisement  to  all  mankind.  Suppose  a  reward  for  information,  in- 
formation posted  does  not  reach,  some  one  else  gives  it  and  is  paid ;  is 
the  offerer  liable  to  the  first  man  ? 

It  is  said  that  a  contrary  rule  would  be  hard  on  the  would-be  acceptor, 
who  may  have  made  his  arrangements  on  the  footing  that  the  bargain 
was  concluded.  But  to  hold  as  contended  would  be  equall}-  hard  on 
the  offerer,  who  may  have  made  his  arrangements  on  the  footing  that 
his  offer  was  not  accepted  ;  his  non-receipt  of  an}-  communication  ma}' 
be  attributable  to  the  person  to  whom  it  was  made  being  absent.  What 
is.  he  to  do  but  to  act  on  the  negative,  that  no  communication  has  been 
made  to  him  ?  Further,  the  use  of  the  post  office  is  no  more  author- 
ized b}-  the  offerer  than  the  sending  an  answer  b}-  hand,  and  all  these 
hardships  would  befall  the  person  posting  the  letter  if  he  sent  it  by 
hand.  Doubtless  in  that  case  he  would  be  the  person  to  suffer  if  the 
letter  did  not  reach  its  destination.  Wh}'  should  his  sending  it  b}'  post 
relieve  him  of  the  loss  and  cast  it  on  the  other  party?  It  was  said,  if 
he  sends  it  by  hand  it  is  revocable,  but  not  if  he  sends  it  by  post, 
which  makes  the  difference.  But  it  is  revocable  when  sent  b}-  post ;  not 
that  the  letter  can  be  got  back,  but  its  arrival  might  be  anticipated  by 
a  letter  b}-  hand  or  telegram,  and  there  is  no  case  to  shew  that  such 
anticipation  would  not  prevent  the  letter  from  binding.  It  would  be  a 
most  alarming  thing  to  say  that  it  would  [not],  —  that  a  letter  honestly 
but  mistaken!}'  written  and  posted  must  bind  the  writer  if  hours  before  its 
arrival  he  informed  the  person  addressed  that  it  was  coming,  but  was 
wrong  and  recalled.  Suppose  a  false  but  honest  character  given,  and  the 
mistake  found  out  after  the  letter  posted,  and  notice  that  it  was  wrong 
given  to  the  person  addressed. 

Then,  as  was  asked,  is  the  principle  to  be  applied  to  telegrams? 
Further,  it  seems  admitted  that  if  the  proposer  said  :  "  Unless  I  hear 
from  you  by  retui'n  of  post  the  offer  is  withdrawn,"  the  letter  accept- 
ing it  must  reach  him  to  bind  him.  There  is  indeed  a  case  recently 
reported  in  the  "Times,"  before  the  Master  of  the  Rolls,  where  the 
offer  was  to  be  accepted  within  fourteen  days,  and  it  is  said  to  have 
been  held  that  it  was  enough  to  post  the  letter  on  the  14th,  though  it 
would  and  did  not  reach  the  offerer  till  the  loth.  Of  course  there  may 
have  been  something  in  that  case  not  mentioned  in  the  report.  But  as 
it  stands  it  comes  to  this,  that  if  an  offer  is  to  be  accepted  in  June,  and 
there  is  a  month's  post  between  the  places,  posting  the  letter  on  the 
30th  of  June  will  suffice,  though  it  does  not  reach  till  the  31st  of  July ; 
but  that  case  does  not  affect  this.  There  the  letter  reached,  here  it  has 
not.  If  it  is  not  admitted  that  "  unless  I  hear  by  return  the  offer  is 
withdrawn,"  makes  the  receipt  of  the  letter  a  condition,  it  is  to  say  an 
express  condition  goes  for  nought.  If  it  is  admitted,  is  it  not  what  every 
letter  says?  Are  there  to  be  fine  distinctions,  such  as,  if  the  words  are 
"^unless  I  hear  from  you  by  return  of  post,  etc.,"  it  is  necessary  the 


102  HOUSEHOLD   FIRE,   ETC.,    INS.    CO.    V.   GRANT.       [CHAP.    I. 

letter  should  reach  him,  but  "let  me  know  by  return  of  post,"  it  is  not; 
or  if  in  that  ease  it  is,  yet  it  is  not  where  there  is  an  offer  without  those 
words?  Lord  Blackburn  says  that  Mellish,  L.  J.,  accurately  stated  that 
-where  it  is  expressly  or  impliedly  stated  in  the  offer,  "you  may  accept 
the  offer  by  posting  a  letter,"  the  moment  you  post  this  letter  the  offer 
is  accepted.  I  agree  ;  and  the  same  thing  is  true  of  any  other  mode  of 
acceptance  offered  with  the  offer  and  acted  on,  — as  firing  a  cannon, 
sending  off  a  rocket,  give  your  answer  to  my  servant  the  bearer.  Lord 
Blackburn  was  not  dealing  with  the  question  before  us  ;  there  was  no 
doubt  in  the  case  before  him  that  the  letter  had  reached.  As  to  the 
authorities,  I  shall  not  re-examine  those  in  existence  before  the  British 
and  American  Telegraph  Co.  v.  Colson,  Law  Rep.  6  Ex.  108.  But  I 
wish  to  say  a  word  as  to  Dunlop  v.  Higgins,  1  H.  L.  C.  381  ;  the  whole 
difficulty  has  arisen  from  some  expressions  in  that  case.  Mr.  Finlay's 
argument  and  reference  to  the  ease  when  originally  in  the  Scotch  Court, 
has  satisfied  me  that  Dunlop  v.  Higgins,  1  H.  L.  C.  381,  decided  noth- 
ing contrary  to  the  defendant  in  this  case.  Mellish,  L.  J.,  in  Harris's 
case,  Law  Rep.  7  Ch.  596,  says  ;  "  That  case  is  not  a  direct  decision 
on  the  point  before  us."  It  is  true,  he  adds  that  he  has  great  diflBculty 
in  reconciling  the  case  of  the  British  and  American  Telegraph  Co.  v. 
Colson,  Law  Rep.  6  Ex.  108,  with  Dunlop  v.  Higgins,  1  H.  L.  C.  381. 
I  do  not  share  that  difficulty.  I  think  they  are  perfectly  reconcilable, 
and  that  I  have  shown  so.  Where  a  posted  letter  arrives,  the  contract 
is  complete  on  the  posting.  So  when  a  letter  sent  by  hand  arrives,  the 
contract  is  complete  on  the  writing  and  delivery  to  the  messenger. 
Why  not?  All  the  extraordinary  and  mischievous  consequences  which 
the  Lord  Justice  points  out,  in  Harris's  case,  Law  Rep.  7  Ch.  596,  might 
happen  if  the  law  were  otherwise  when  a  letter  is  posted,  would  equall}' 
happen  where  it  is  sent  otherwise  than  by  the  post.  He  adds  that  the 
question  before  the  Lords  in  Dunlop  v.  Higgins,  1  H.  L.  C.  381,  was 
whether  the  ruling  of  the  Lord  Justice  Clerk  was  correct,  and  they  held 
it  was.  Now  Mr.  Finlay  showed  very  clearly  that  the  Lord  Justice 
Clerk  decided  nothing  inconsistent  with  the  judgment  in  the  British  and 
American  Telegraph  Co.  v.  Colson,  Law  Rep.  6  Ex.  108.  Since  the 
last  case  there  have  been  two  before  Vice-Chancellor  Malins,  in  the 
earlier  of  which  he  thought  it  "  reasonable,"  and  followed  it.  In 
the  other,  because  the  Lord  Justices  had,  in  Harris's  case.  Law  Rep.  7 
Ch.  596,  thrown  cold  water  on  it,  he  appears  to  have  thought  it  not 
reasonable.  He  says,  suppose  the  sender  of  a  letter  says,  "  I  make 
you  an  offer,  let  me  have  an  answer  by  return  of  post."  By  return  the 
letter  is  posted,  and  A.  has  done  all  that  the  person  making  the  offer 
requests.  Now  that  is  precisely  what  he  has  not  done.  He  has  not  let 
him  ' '  have  an  answer."  He  adds  there  is  no  default  on  his  part. 
Why  should  he  be  the  only  person  to  suffer?  Verj-  true.  But  there  is 
no  default  in  the  other,  and  wh}-  should  he  be  the  only  person  to  suffer? 
The  only  other  authority  is  the  expression  of  opinion  by  Lopes,  J.,  in 
the  present  case.     He  says   the  proposer  may  guard  himself  against 


SECT.   I.]      HOUSEHOLD   FIRE,   ETC.,   INS.   CO.    V.  GRANT.  103 

hardship  by  making  the  proposal  expressl}'  conditioned  on  tlie  arrivul 
\ji  the  answer  within  a  definite  time.  But  it  need  not  be  express  nor 
within  a  definite  time.  It  is  enough  that  it  is  to  be  inferred  that  it  is  to 
be,  and  if  it  is  to  be  it  must  be  within  a  reasonable  time.  The  mis- 
chievous consequences  he  points  out  do  not  follow  from  that  which  I  am 
contending  for.  I  am  at  a  loss  to  see  how  the  post  office  is  the  agent 
for  both  parties.  What  is  the  agency  as  to  the  sender,  —  merely-  to 
receive?  But  suppose  it  is  not  an  answer,  but  an  original  communica- 
tion ;  what  then  ?  Does  the  extent  of  the  agency  of  the  post-office 
depend  on  the  contents  of  the  letter?  But  if  the  post  office  is  the  agent 
of  both  parties,  then  the  agent  of  both  parties  has  failed  in  his  dut\', 
and  to  both.  Suppose  the  offerer  says,  "My  offer  is  conditional  on 
3'our  answer  reaching  me."  Whose  agent  is  the  post  office  then?  But 
how  does  an  offerer  make  the  post  office  his  agent,  because  he  gives  the 
offeree  an  option  of  using  that  or  an}'  other  means  of  communication  ? 
I  am  of  opinion  that  this  judgment^  should  be  reversed.  I  am  of 
fyinioirthat  th»r^  was_no  bargain  between  these  parties  to  allot  aiid 
take  shares^  that  to  make  such  bargain  there  should  have  been  an 
acceptance  of  the  defendant's  offer,  and  a  corhmiinrcation  to  him  of  that 
acceptance  i^ that  th^ere  was  no  such  communication  ;  that  poaling^a 
letter  djx^not  differ  from  other  attempts  at  communication  in  any  of 
^tg^conspgnencps,  save  that  it  is  irrevocable  as  between  the  poster  and 
post  officer—  The  difficulty  has  arisen  from  a  mistake  as  to  what  was 
decided  in  Dunlop  v.  Higgins,  1  H.  L.  C.  381,  and  from  supposing  that 
because  there  is  a  right  to  have  recourse  to  the  post  as  a  means  of 
communication,  that  right  is  attended  with  some  peculiar  consequences  ; 
and  also  from  supposing  that  because  if  tlie  letter  reaches  it  binds  from 
the  time  of  posting,  it  also  binds  though  it  never  reaches.  Mischief 
mav  arise  if  mj"  opinion  prevails.  It  probably  will  not,  as  so  much  has 
been  said  on  the  matter  that  principle  is  lost  sight  of.  I  believe  equal 
if  not  greater,  will,  if  it  does  not  prevail.  I  believe  the  latter  will  be 
obviated  onl}'  by  the  rule  being  made  nugatory  by  every  prudent  man 
saying,  "  Your  answer  by  post  is  onlj'  to  bind  if  it  reaches  me."  But 
the  question  is  not  to  be  decided  on  these  considerations.  What  is  the 
law?  What  is  the  principle?  If  Brian,  C.  J.,  had  had  to  decide  this, 
a  public  post  being  instituted  in  his  time,  he  would  have  said  the  law  is 
the  same,  now  there  is  a  post,  as  it  was  before,  viz.,  a  communication 
V>  fl^ffP^  ^  ^^^  must  be  a  communication,  i.  e.  must  reach  him. 

Judgvient  affirmed} 

1  Adams  v.  Lind.sell,  1  B.  &  Aid.  G81  ;  Potter  v.  Sanders,  6  Hare,  1  ;  Dunlop  v. 
Higgins,  1  H.  L.  C.  381  ;  Duncan  v.  Topham,  8  C.  B.  225  ;  Hebb's  Case,  L.  R.  4  Eq. 
9  ;  Harris's  Case,  L.  R.  7  Ch.  .589  ;  Byrne  v.  Van  Tienhoven,  5  C.  V.  D.  344 ;  Brogden 
V.  Metropolitan  Ry.  Co.,  2  App.  Cas.  666 ;  McGiverin  v.  James,  33  U.  C.  Q.  B.  203 ; 
Tayloe  v.  Merchants'  F.  Ins.  Co.,  9  How.  390;  Patrick  v.  Bowman,  149  U.  S.  411  ; 
Winterport,  S  c.  Co.  v.  The  Jasper,  1  Holmes,  99 ;  Re  Dodge,  9  Ben.  482  ;  Darlington 
Iron  Co.  V.  F  >ote,  16  Fed.  Rep.  646  ;  Sea  Ins.  Co.  v.  Johnston,  105  Fed.  Rep.  286,  291, 
(C.  C.  A.)  ;  ^evisohn  i'.  Waganer,  76  Ala.  412  ;  Linn  v.  McLean,  80  Ala.  360;  Kemp- 
ner  v.  Cohr ,  47  Ark.  519  ;  Levy  v.  Cohen,  4  Ga.  1  ;  Bryant  v.  Booze,  55  Ga.  438  ;  Haas 
V.  Myers,    11   IR.  421  ;  Chytraus  v.  Smith,  141  111.  231,  257  ;  Kentucky  Mut.  Ins.  Co. 


104  HENTHORN   V.   FRASER.  [CHAP.    I. 

HENTHORN   v.    FRASER. 
In  the  Chancery  Division,  Court  of  Appeal,  March,  3,  26,  1892. 

[Reported  in  [1892]  2  Chancer i/,  27.] 

In  1891  the  plaintiff  was  desiious  of  purchasing  from  the  Huskisson 
Benefit  Building  Society  certain  iiouses  in  Flanianli  Street,  Birlienhead. 
In  May  lie,  at  the  oltice  of  the  society  in  Chapel  Street,  Liverpool, 
signed  a  memorandum  drawn  up  by  the  secretary,  offering  £600  for  the 

V.  Jenks,  5  Ind.  96  ;  Moore  v.  Pierson,  6  la.  279  ;  Ferrier  v.  Storer,  63  la.  484  ;  Siebold 
V.  Davis,  67  la.  560 ;  Hunt  v.  Higman,  70  la.  406 ;  Gipps  Brewing  Co.  v.  De  France, 
91  la.  108,  112  ;  Chiles  v.  Nelson,  7  Dana,  281  ;  Bailey  v.  Hope  Ins.  Co.,  56  Me.  474 ; 
Wheat  V.  Cross,  31  Md.  99  ;  Lungstrass  r.  German  Ins.  Co.,  48  ]^o.  201  ;  Lancaster  v. 
Elliot,  42  Mo.  App.  503  ;  Egger  v.  Nesbitt,  122  Mo.  667,  674 ;  Horton  v.  New  York 
Life  Ins.  Co.,  151  Mo.  604  ;  Abbott  v.  Shepard,  48  N.  H.  14  ;  Davis  v.  jEtna  Mut.  F. 
I.  Co.,  67  N.  H.  218  ;  Hallock  v.  Commercial  Ins.  Co.,  26  N.  J.  L.  268 ;  Commercial 
Ins.  Co.  V.  Hallock,  27  N.  J.  L.  645  ;  Northampton,  &c.  Ins.  Co.  v.  Tuttle,  40  N.  J.  L. 
476  ;  Mactier  v.  Frith,  6  Wend.  103  ;  Vassar  v.  Camp.  11  N.  Y.  441 ;  Trevor  v.  Wood, 
36  N.  Y".  307  ;  Watson  v.  Russell,  149  N.  Y.  388,  391  ;  Hacheny  v.  Leary,  12  Ore.  40; 
Hamilton  v.  Lycoming  M.  I.  Co.,  5  Pa.  St.  339 ;  McClintock  v.  South  Penn.  Oil  Co., 
146  Fa.  144,  161  ;  Otis  v.  Payne,  86  Tenn.  663 ;  Blake  v.  Hamburg  Bremen  F.  I.  Co., 
67  Tex.  160;  Haarstick  v.  Fox,  9  Utah,  110;  Durkee  v.  Vermont  Central  R.  R.  Co., 
29  Vt.  127 ;  Hartford  Ins.  Co.  v.  Lasher  Stocking  Co.,  66  Vt.  439 ;  Washburn  v. 
Fletcher,  42  Wis.  152,  ace.  The  only  contrary  decision  not  overruled  seems  to  be  Mc- 
CuUoch  V.  Eagle  Ins.  Co.,  1  Pick.  278.  The  letter  must,  however,  be  properly  directed 
and  stamped.  Potts  v.  Whitehead,  5  C.  E.  Green,  55  ;  Britton  v.  Phillips,  24  How. 
Pr.  Ill  ;  Blake  v.  Hamburg  Bremen  F.  I.  Co.,  67  Tex.  160. 

The  case  of  Ex  parte  Cote,  L.  R.  9  Ch.  27,  seems  to  indicate  that  the  English  doc 
trine  is  based  on  the  assumption  that  a  letter  when  mailed  is  no  longer  within  the 
control  of  the  sender,  and  that  where  as  in  France  the  sender  may  reclaim  his  letter 
the  contract  should  not  be  regarded  as  completed  by  the  mailing  of  an  acceptance. 
By  the  United  States  Postal  Laws,  §§  531,  533,  the  sender  of  a  letter  may  regain 
it  by  complying  with  required  formalities.  See  also  Crown  Point  Iron  Co.  v.  ^tna 
Ins.  Co.,  127  N.  Y.  608,  619.  But  in  McDonald  v.  Chemical  Nat.  Bank,  174  U.  S.  610, 
620,  the  Court  said  :  "  Nor  can  it  be  conceded  that  except  on  some  extraordinary  occa- 
sion and  on  evidence  satisfactory  to  the  post-office  authorities,  a  letter  once  mailed  can 
be  withdrawn  by  the  party  who  mailed  it.  When  letters  are  placed  in  a  post-office, 
they  are  within  the  legal  custody  of  the  officers  of  the  government,  and  it  is  the  duty 
of  postmasters  to  deliver  them  to  the  parties  to  whom  they  are  addressed.  United 
States  V.  Pond,  2  Curtis,  C.  C.  265 ;  Buell  v.  Chapin,  99  Mass.  594 ;  Morgan  v.  Rich- 
ardson, 13  Allen,  410 ;  Tayloe  v.  Merchants'  Fire  Ins.  Co.,  9  How.  390." 

If  the  use  of  the  telegraph  is  authorized  expressly  or  impliedly,  the  delivery  of  the 
acceptance  to  the  telegraph  office  is  held  to  complete  the  contract.  Stevenson  v.  Mc- 
Lean, 5  Q.  B.  D.  346  ;  Cowan  v.  O'Connor,  20  Q.  B.  D.  640 ;  Minnesota  Oil  Co.  v. 
Collier  Lead  Co.,  4  Dill.  431  ;  Garretson  v.  North  Atchison  Bank,  47  Fed.  Rep.  867  ; 
Andrews  v.  Schreiber,  93  Fed.  Rep.  369;  Haas  v.  Myers,  111  111.  421,  427  ;  Cobb  v. 
Foree,  38  111.  App.  255  ;  Trevor  v.  Wood,  36  N.  Y.  307 ;  Perry  v.  Mt.  Hope  Iron  Co., 
15  R.  I.  380.  Contra  is  Beaubien  Produce  Co.  v.  Robertson,  Rap.  Jud.  Quebec,  18 
C.  S.  429. 

The  question  when  a  contract  by  mail  or  telegraph  is  completed  has  been  much 
disputed  in  the  civil  law,  and  there  are  four  or  five  theories  each  of  which  has  adher- 
ents. See  Valery,  Contrats  par  Correspondance,  §  130  seq. ;  Wiudscheid,  Pandekten- 
recht,  II.  §  306. 


SECT.  I.]  HENTHORN-  V.   FEASER.  105 

property,  wnich  offer  was  declined  b^'  the  directors  ;  and  on  the  1st  of 
Jul}'  he  made  in  the  same  way  an  offer  of  £700,  which  was  also  declined. 
On  the  7th  of  July  he  again  called  at  the  office,  and  the  secretary 
verbally  offered  to  sell  to  him  for  £750.  This  offer  was  reduced  into 
writing,  and  was  as  follows  :  — 

"I  hereby  give  you  the  refusal  of  the  Flamank  Street  property  at 
£750  for  fourteen  days." 

The  secretar}-,  after  signing  this,  handed  it  to  the  plaintiff,  who  took 
it  awa}'  with  him  for  consideration. 

On  the  morning  of  the  8th  another  person  called  at  the  office  and 
offered  £760  for  the  property,  which  was  accepted,  and  a  contract  for 
purchase  signed,  subject  to  a  condition  for  avoiding  it  if  the  society 
found  that  they  could  not  withdraw  from  the  offer  to  the  plaintiff. 

Between  12  and  1  o'clock  on  that  da}'  the  secretary  posted  to  the 
plaintiff,  who  resided  in  Birkenhead,  the  following  letter :  — 

"  Please  take  notice  that  mj'  letter  to  30U  of  the  7th  instant,  giving 
you  the  option  of  purchasing  the  propert}',  Flamank  Street,  Birkenhead, 
for  £750,  in  fourteen  daj's,  is  withdrawn,  and  the  offer  cancelled." 

This  letter,  it  appeared,  was  delivered  at  the  plaintifTs  address 
between  5  and  6  in  the  evening ;  but,  as  he  was  out,  did  not  reach  his 
hands  till  about  8  o'clock. 

On  the  same  8th  of  July  the  plaintiff's  solicitor,  by  the  plaintiff's  direc- 
tion, wrote  to  the  secretary'  as  follows  :  — 

"  I  am  instructed  by  Mr.  James  Henthorn  to  write  to  you,  and  accept 
your  offer  to  sell  the  propert}',  1  to  17  Flamank  Street,  Birkenhead, 
at  the  price  of  £750.  Kindly  have  contract  prepared  and  forwarded 
to  me." 

This  letter  was  addressed  to  the  society's  office,  and  was  posted  in 
Birkenhead  at  3.30  p.  m.,  was  delivered  at  8.30  p.  m.  after  the  closing  of  the 
office,  and  was  received  by  the  secretary  on  the  following  morning.  The 
secretar}'  replied,  stating  that  the  societ3''s  offer  had  been  withdrawn. 

The  plaintiff  brought  this  action  in  the  Court  of  the  County  Palatine 
for  specific  performance.  The  Vice-Chancellor  dismissed  the  action, 
and  the  plaintiff  appealed. 

Fartvell,  Q.  C,  and  T.  R.  Hughes,  for  the  appeal. 

Neville,  Q.  C,  and  P.  0.   Lmorence,  for  the  defendant :  — 

"We  insist  that  the  Vice-Chancellor  has  drawn  a  correct  inference,  — 
that  there  was  no  authorit}'  to  accept  b}'  post ;  and  if  that  be  so,  the 
acceptance  will  not  date  from  the  posting.  Dunlop  v.  Higgins,  1 
H.  L.  C,  381,  went  on  the  ground  that  it  was  the  understanding  of  both 
parties  that  an  answer  should  be  sent  by  post.  In  Brogden  v.  Metro- 
politan Railway  Company,  Lord  Blackburn  puts  it  on  the  ground  "  that 
where  it  is  expressly  or  impliedly  stated  in  the  offer  that  you  may 
accept  tlie  offer  by  posting  a  letter,  the  moment  you  post  the  letter  the 
offer  is  accepted."  It  would  be  very  inconvenient  to  hold  the  post 
admissible  in  all  cases.  Here,  Liverpool  and  Birkenhead  are  at  such  a 
short  distance  from  each  other  that  it  cannot  be  considered  that  the 


106  HENTHORN   V.   FRASEK.  [CHAP.    1. 

plaintiff  had  an  authority  to  reply  by  post.  If  the  offer  had  been  sent 
by  post  that  would,  no  doubt,  be  held  to  give  an  authority  to  reply 
by  post ;  but  the  offer  was  delivered  by  hand  to  the  plaintiff,  who  was 
in  the  habit  of  calling  at  the  defendant's  office,  and  lived  only  at  a 
short  distance,  so  that  authority  to  reply  by  post  cannot  be  inferred. 
The  post  is  not  prohibited ;  the  acceptance  may  be  sent  in  any  way  ; 
but,  unless  sending  it  by  post  was  authorized,  it  is  inoperative  till  it 
is  received.  Suppose,  immediately  after  posting  the  acceptance,  the 
plaintiff  had  gone  to  the  office  and  retracted  it,  surely  he  would  have 
been  free. 

[Lord  Herschell.  —  It  is  not  clear  that  he  would,  after  sending  an 
acceptance  in  such  a  way  that  he  could  not  prevent  its  reaching  the 
other  party.  Possibly  a  case  where  the  question  is  as  to  the  date  from 
which  an  acceptance  which  has  been  received  is  operative  may  not 
stand  on  precisely  the  same  footing  as  one  where  the  question  is 
whether  the  person  making  the  offer  is  bound,  though  the  acceptance 
has  never  been  received  at  all.  More  evidence  of  authority  to  accept 
by  post  may  be  required  in  the  latter  case  than  in  the  former.] 

Dickinson  v.  Dodds,  2  Ch.  D.  463,  shows  that  a  binding  contract  to 
sell  to  another  person  may  be  made  while  an  offer  is  pending,  and  that 
it  will  be  a  withdrawal  of  the  offer. 

[Lord  Herschell.  —  In  that  case  the  person  to  whom  the  offer 
was  made  knew  of  the  sale  before  he  sent  his  acceptance.] 

J^arv^ell,  in  reply. 

1892,  March  26,  Lord  Herschell.^  If  the  acceptance  by  the 
plaintiff  of  the  defendant's  offer  is  to  be  treated  as  complete  at  the 
time  the  letter  containing  it  was  posted,  I  can  entertain  no  doubt 
that  the  society's  attempted  revocation  of  the  offer  was  wholly  inef- 
fectual. I  think  that  a  person  who  has  made  an  offer  must  be 
considered  as  continuously  making  it  until  he  has  brought  to  the 
knowledge  of  the  person  to  whom  it  was  made  that  it  is  withdrawn. 
This  seems  to  me  to  be  in  accordance  with  the  reasoning  of  the 
Court  of  King's  Bench  in  the  case  of  Adams  v.  Lindsell,  1  B.  &  Al. 
681,  which  was  approved  by  the  Lord  Chancellor  in  Dunlop  v.  Higgins, 
1  H.  L.  C.  381,  399,  and  also  with  the  opinion  of  Lord  Justice  Mellish 
in  Harris's  case,  Law  Rep.  7  Ch.  587.  The  very  point  was  decided  in 
the  case  of  Byrne  v.  Van  Tienhoven,  5  C.  P.  D.  344,  by  Lord  Justice 
Lindley,  and  his  decision  was  subsequently  followed  by  Mr.  Justice 
Lush.  The  grounds  upon  which  it  has  been  held  that  the  acceptance 
of  an  offer  is  complete  when  it  is  posted  have,  I  think,  no  application 
to  the  revocation  or  modiflcation  of  an  offer.  These  can  be  no  more 
effectual  than  the  offer  itself,  unless  brought  to  the  mind  of  the  person 
to  whom  the  offer  is  made.  But  it  is  contended  on  behalf  of  the  de- 
fendants that  the  acceptance  was  complete  only  when  received  by  them, 
and  not  on  the  letter  being  posted.  It  cannot,  of  course,  be  denied, 
after  the  decision  in  Dunlop  v.  Higgins,  1  H.  L.  C.  381,  in  the  House  of 
Lords,  that,  where  an  offer  has  been  made  through  the  medium  of  the 

1  Lord  Herschell's  restatement  of  the  case  is  omitted.  The'concurring  opinions  of 
Lindley,  L.  J.,  and  Kay,  L.  J.,  arc  ?.lsc  onrltted. 


SECT.  I.J  henthor:n  v.  frasee.  107 

post,  the  contract  is  complete  as  soon  as  the  acceptance  of  the  offer  is 
posted,  but  that  decision  is  said  to  he  inapplicable  here,  inasmuch  as 
the  letter  containing  the  offer  was  not  sent  b\'  post  to  Birkenhead,  but 
handed  to  the  plaintiff  in  the  defendant's  office  at  Liverpool.     The  ques- 
tion therefore  arises  in  what  circumstances  the  acceptance  of  an  offer  is 
to  be  regarded  as  complete  as  soon  as  it  is  posted.     In  the  case  of  the 
Household  Fire  and  Carriage  Accident  Insurance  Company'  v.  Grant, 
4  Ex.  D.  216,  Lord  Justice  Baggalla}'  said  (ibid.  227)  :  "  I  think  that  the 
principle  established  in  Dunlop  v.  Higgins  is  limited  in  its  application 
to  cases  in  which  b}-  reason  of  general  usage,  or  of  the  relations  between 
the  parties  to  a,r\\  particular  transactions,  or  of  the  terms  in  which  the 
offer  is  made,  the  acceptance  of  such  offer  by  a  letter  through  the  post 
is  expressly  or  impliedly  authorized."     And  in   the   same  case  Lord 
Justice  Thesiger  based  his  judgment,  4  Ex.  D.  218,  on  the  defendant 
having  made  an  application   for  shares   under  circumstances   "  from 
which  it  must  be  implied  that  he  authorized  the  company,  in  the  event 
of  their  allotting  to  him  the  shares  applied  for,  to  send  the  notice  of 
allotment  b}'  post."     The  facts  of  that  case  were  that  the  defendant 
had,  in  Swansea,  where  he  resided,  handed  a  letter  of  application  to  an 
agent  of  the  company,  their  place  of  business  being  situate  in  London. 
It  was  from  these  circumstances  that  the  Lords  Justices  implied  an 
authority  to  the  compau}-  to  accept  the  defendant's  offer  to  take  shares 
through  the  medium  of  the  post.     Applying  the  law  thus  laid  down  b}' 
tlie  Court  of  Appeal,  I  think  in  the  present  case  an  authority  to  accept 
by  post  must  be  implied.     Although  the  plaintiff  received  the  offer  at 
the  defendants'  office  in  Liverpool,  he  resided  in  another  town,  and  it 
must  have  been  in  contemplation  that  he  would  take  the  offer,  which 
by  its  terms  was  to  remain  open  for  some  days,  with  him  to  his  place 
of  residence,  and  those  who  made  the  offer  must  have  known  that  it 
would  be  accoi'ding  to  the  ordinar}'  usages  of  mankind  that  if  he  ac- 
cepted it  he  should  communicate  his  acceptance  by  means  of  the  post. 
I  am  not  sure  that  I  should  myself  have  regarded  the  doctrine  tliat  an 
acceptance  is  complete  as  soon  as  the  letter  containing  it  is  posted  as 
resting  upon  an  implied  authorit}'  by  the  person  making  the  offer  to  the 
person  receiving  it  to  accept  b}^  those  means.     It  strikes  me  as  some- 
what artificial  to  speak  of  the  person  to  whom  the  offer  is  made  as  hav- 
ing the  implied  authorit}-  of  the  other  party  to  send  his  acceptance  by 
post.     He  needs  no  authority  to  transmit  the  acceptance  through  any 
particular  channel ;  he  ma}-  select  what  means  he  pleases,  the  post  office 
no  less  than  any  other.     The  oxAy  effect  of  the  supposed  authority  is  to 
make  the  acceptance  complete  so  soon  as  it  is  posted,  and  authority 
will  obviousl}'  be  implied  onlv  when  the  tribunal  considers  that  it  is  a 
case  in  which  this  result  ought  to  be  reached.     I  should  prefer  to  state 
the  rule  thus  :   _Where  the  circumstances  are  such  that  it  must  have 
been  within  the  contemplation  of  the  parties  that,  according  to  the 
ordinary  usages  of  mankind,  the  post  might  be  used  as  a  means  of 
communicating  the  acceptance  of  an  offer,  the  acceptance  is  complete 


108  IN    RE   LONDON   AND   NORTHERN   BANK.        [CHAP.    I. 

as  soon  as  it  is  posted.^  It  matters  not  in  which  way  the  proposition 
be  stated,  the  present  case  is  in  either  view  within  it.  The  learned 
Vice-Chancellor  appears  to  have  based  his  decision  to  some  extent  on 
the  fact  that  before  tlie  acceptance  was  posted  the  defendants  had  sold 
tlie  property  to  another  person.  The  case  of  Dickinson  v.  Dodds, 
2  Ch.  D.  4G3,  was  relied  upon  in  support  of  that  defence.  In  that  case, 
however,  the  plaintiff  knew  of  the  subsequent  sale  before  he  accepted 
the  offer,  which,  in  my  judgment,  distinguishes  it  entirely'  from  the 
present  case.  I'or  the  reasons  I  have  given,  I  tiiink  the  judgment  must 
be  reversed,  and  the  usual  decree  for  specific  performance  made.  The 
respondents  must  pay  the  costs  of  the  appeal  and  of  the  action. 


In  re  LONDON   AND  NORTHERN  BANK.     Ex  parte  JONES. 
In  the  Chancery  Division,  November  15-17,  1899. 

[Reported  in  [1900]  1  Chancery,  220.] 

Cozens-Hardt,  J.  On  October  15,  1898,  Dr.  Jones,  who  resides  at 
Sheffield,  applied  for  1000  ordinary  shares  of  10^.  each  in  the  companj-, 
upon  wliich  he  paid  a  deposit  of  500/.,  being  10s.  per  share.  His  let- 
ter of  application,  with  cheque  enclosed,  was  received  in  due  course  by 
the  company.  On  October  26  Dr.  Jones  wrote  from  Sheffield  a  letter 
withdrawing  his  application  and  asking  for  a  return  of  his  500/.  This 
letter  of  withdrawal  was  sent  as  a  registered  letter.  It  was  delivered 
at  the  office  of  the  company  at  about  8.30  on  the  morning  of  October 
27  before  the  arrival  of  the  secretary'.  On  the  afternoon  of  October  26 
a  board  meeting  of  the  company'  was  held,  at  which  it  was  resolved  to 
allot  1000  shares  to  Dr.  Jones.  An  allotment  letter  addressed  to  Dr. 
Jones,  dated  October  26,  was  delivered  in  Sheffield  at  about  7.30  in  the 
evening  of  October  27.  Dr.  Jones  now  applies  to  have  his  name  re- 
moved from  the  register  in  respect  of  the  1000  shares,  and  for  a  return 
of  his  deposit,  on  the  ground  that  his  application  was  withdrawn  before 
notice  of  acceptance. 

The  company  alleges  that,  although  the  notice  of  allotment  did  not 
reach  Dr.  Jones  until  tlie  evening  of  the  27th,  it  was  posted  at  or 
about  7.30  on  the  morning  of  the  26th,  and  therefore  before  the  letter 
of  withdrawal  arrived.  It  is  settled  law  that  an  offer  is  to  be  deemed 
accepted  when  the  letter  of  acceptance  is  posted,  the  reason  being  that 
the  post-office  is  considered  the  common  agent  of  both  parties.  Har- 
ris's Case  (1872),  L.  R.  7  Ch.  587.     Hence,  no  delay  on  the  part  of  the 

1  In  Perry  v.  Mt.  Hope  Iron  Co.,  15  R.  I.  380,  an  offer  made  in  Boston  in  conversa- 
tion was  to  "  stand  until  the  next  day."  The  plaintiff  telegraphed  an  acceptance  from 
Providence.  It  was  held  that  the  contract  was  completed  in  Rhode  Island.  "  If  there 
be  any  question  that  the  telegraph  is  a  natural  and  ordinary  mode  of  transmitting  such 
an  acceptance,  that  is  a  question  of  fact  for  the  jury  ;  but  we  are  of  opinion  that  if  it 
be  shown  that  the  acceptance  duly  reached  the  defendant,  the  question  of  the  mode,  no 
mode  having  been  specified,  is  immaterial."     See  also  Wilcox  v.  Cline,  70  Mich.  517. 


SECT.    I.]         IN  EB   LONDON  AND  NORTHERN  BANK.  109 

post-office  in  delivering  the  letter  will  be  material.  The  withdrawal, 
in  order  to  be  effectual,  must  be  before  the  offer  is  clinched  by  the 
posting  of  the  letter  of  acceptance.  The  question  I  have  to  decide  is 
this  :  Was  the  letter  of  allotment  posted  before  the  letter  withdrawing 
the  offer  was  received  by  the  compan}'?  Now,  the  envelope  contain- 
ing the  letter  of  allotment  is  produced.  It  bears  a  stamp  impressed 
with  the  words  "  11  a.  m.,  27  Oct.,  '98,"  with  the  figures  "44"  below. 
It  has  been  proved  that  this  stamp  indicates  that  the  letter  was  not 
posted  at  the  general  post-office  at  all,  but  was  deposited  at  one  of 
the  district  post-offices  in  London,  from  which  letters  are  collected  and 
taken  to  the  general  post-office.  The  letters  thus  collected  are  placed 
upon  a  separate  bench  or  table,  and  this  particular  stamp  is  impressed 
on  them.  No  work  is  done  at  this  table  until  after  9.15.  Letters 
posted  at  the  general  post-office  are  dealt  with  at  a  different  table  and 
are  impressed  with  a  different  stamp.  If  the  letter  had  been  posted  at 
7.30  at  the  general  post-office,  it  would  have  been  forwarded  bj-  the 
10  o'clock  train  to  Sheffield  and  have  been  delivered  before  7.30.  It 
was  in  fact  sent  down  in  the  ordinar}'  course  bj'  a  train  at  or  about  12 
o'clock,  and  was  delivered  in  due  course  at  7.30. 

This  evidence  raises  a  strong  presumption  in  favor  of  the  applicant. 
The  company'  seeks  to  rebut  this  presumption,  and  the  result  of  the 
evidence  on  its  behalf  is  as  follows :  Mr.  Claxton,  who  was  employed 
by  the  promoters  with  a  staff  of  about  ten  clerks,  was  engaged  from 
shorth'  after  the  end  of  the  board  meeting  on  the  afternoon  of  the  26th 
throughout  the  whole  night  in  preparing  from  the  allotment  sheets  the 
letters  of  allotment.  Their  task  ended  at  about  7  in  the  morning,  when 
Mr.  Claxton  and  one  of  his  clerks  took  the  letters,  which  were  fastened 
in  bundles  of  fifty,  in  a  cab  to  St.  Martin's-le-Grand.  Thej-  got  out  of 
the  cab,  and,  seeing  a  porter  in  livery  outside  the  building,  had  some 
conversation  with  him,  in  the  course  of  which  a  postman  came  by  and 
offered  to  take  the  letters.  The}-  gave  him  sixpence  or  a  shilling  for 
his  trouble.  He  went  into  St.  Martin's-le-Grand,  came  back,  and  said 
it  was  "  all  right."  Mr.  Claxton  was  not,  in  some  respects,  a  satisfac- 
tory witness,  but  for  the  purposes  of  my  judgment  I  assume  that  the 
letter  of  allotment  to  Dr.  Jones  was  among  those  taken  to  St.  Martin's- 
le-Grand  and  thus  dealt  with. 

It  was  contended  that  this  was  a  posting  of  the  letter  at  St.  Martin's- 
le-Grand.  It  seems  to  me,  however,  that  the  postman  was  not  an 
agent  of  the  post-office  to  receive  the  letters.  The  Postal  Guide,  at 
p.  47,  expressly  states  that  town  postmen  are  not  allowed  to  take 
charge  of  letters  for  the  post.  Mr.  Anderson,  the  witness  from  the 
post-office,  stated  that  any  man  would  be  reported  if  discovered  to 
have  done  any  such  thing.  I  cannot,  therefore,  regard  the  postman  as 
anything  better  than  a  boy  messenger  employed  by  Claxton  to  post  the 
letters,  and  the  mere  fact  of  handing  the  letter  to  the  postman  outside 
St.  Martin's-le-Grand  was  not  a  posting  of  the  letter. 

It  is  further  urged  that  directly  the  postman  entered  St.  Martin's-le- 
Grand  the  letter  thereupon  came  into  the  lawful  custody  of  the  post- 


110  LEWIS   V.    BROWNING.  [CHAP.   I. 

office,  and  was  posted,  without  reference  to  what  the  postman  did  with 
it.  I  am,  however,  unable  to  follow  this  view.  It  is  not  possible  for 
me  to  ascertain  precisely  what  was  done  with  the  letters  by  the  un- 
known postman.  He  may  have  left  them  at  a  table  or  in  a  bag  until 
some  later  hour.  He  may  have  taken  them  to  a  branch  office.  All  I 
know  is  that  it  was  not  until  a  much  later  hour  that  they  were  found  on 
the  table  appropriated  to  branch  office  letters.  However  that  may  be, 
I  think  that  the  company  has  failed  to  prove  that  the  letter,  which  did 
not  leave  the  post-office  until  about  11  o'clock,  was  posted  before  8.30, 
or  before  9.30,  at  which  hour  the  secretary  arrived  and  opened  the 
letter  of  withdrawal. 

As  to  the  point  that  the  notice  of  withdrawal  did  not  reach  the  com- 
pany when  it  was  opened  by  the  secretary,  I  think  there  is  no  founda- 
tion for  the  suggestion.  The  secretary  is  the  man  whose  dut}'  it  was  to 
receive  and  open  letters  of  that  nature.  The  result  is  that  I  think  the 
withdrawal  was  in  time,  and  I  must  therefore  make  an  order  removing 
the  name  of  Dr.  Jones  from  the  register  in  respect  of  the  1000  shares  ; 
and  I  must  order  the  return  of  the  deposit,  with  interest  at  4  per  cent. 
The  company  must  pay  the  costs  of  the  motion.^ 


HELEN   C.    LEWIS   v.   MATTHEW  P.   BROWNING. 

Supreme  Judicial  Court  of  Massachusetts,  November  11,  1880  — 

January  6,  1881. 

[Reported  in  130  Massachusetts,  173.] 

Contract  for  breach  of  the  covenants  of  a  written  lease  of  a  tene- 
ment in  Boston.  Trial  in  the  Superior  Court,  without  a  jury,  before 
Rockwell,  J.,  who  allowed  a  bill  of  exceptions  in  substance  as  follows  : 

The  defendant  admitted  that  there  had  been  a  breach  of  the  condi- 
tions of  the  lease,  and  agreed  that  judgment  might  be  entered  for  the 
plaintiff  in  the  sum  $2,168.22,  unless  the  facts  herein  stated  constituted 
a  defence  to  this  action. 

The  judge  found  that  the  defendant,  who  was  a  resident  of  New  York 
in  the  year  1868,  was,  during  the  summer  of  that  year,  temporarily 
residing  and  practising  his  profession  as  a  ph3-sician  at  Cape  May,  in 
the  State  of  New  Jersey,  and  that  the  plaintiff  and  her  husband,  Dr. 
Dio  Lewis,  residents  of  Boston  at  that  time,  were  temporaril}'  residing 
at  Oakland,  in  the  State  of  California  ;  that,  on  June  10,  1878,  Lewis, 

1  "  It  is  clear  that  when  the  plaintiff  in  pursuance  of  defendant's  request,  deposited 
the  duplicate  of  the  contract  signed  by  her,  with  her  address,  in  the  United  States 
street  mailing-box,  the  agreement  by  that  act  became  complete."  Watson  v.  Russell, 
149  N.  Y.  388,  391.  See  also  Wood  v.  Calnan,  61  Mich.  402,  411  ;  Greenwich  Bank  v. 
I)e  Groot.  7  Hun,  210,  ace.  In  Pearce  v.  Lanfrfit,  101  Ha.  ."JOT,  511,  the  Court  said: 
"  It  certainly  can  make  no  aifference  whether  tlie  letter  is  handed  directly  to  the  car- 
rier, or  is  firet  deposited  in  a  receiving  box  and  taken  from  thence  by  the  same  carrier. 
.  .  .  The  post:.l  regulations  of  the  United  States  lequire  that  carriers  while  on  their 
rounds  shall  receive  all  letters  prepaid  that  may  be  handed  them  for  mailing." 


SECT.   I.]  LEWIS   V.   BROWNING.  Ill 

who  was  and  still  is  the  authorized  agent  of  his  wife,  the  plaintiff,  wrote 
the  defendant  a  letter,  which  was  received  b}"  him,  in  which  he  re- 
quested the  defendant  to  make  him  an  offer  for  a  new  lease  of  said 
j)remises.  The  defendant  replied,  making  such  offer,  by  letter  dated 
June  22,  1878.  In  this  letter  the  defendant  gave,  as  a  reason  for 
desiring  to  make  the  new  contract,  his  anxiety  to  be  released  from  all 
claim  b\'  the  plaintiff. 

On  Jul}'  8,  1878,  Lewis  wrote  the  defendant  a  letter,  which  he  re- 
ceived on  July  17,  1878,  at  Cape  Ma}-,  in  which  Lewis  accepted  the 
defendant's  offer  with  slight  modifications,  and  which  contained  the 
following:  "If  you  agree  to  this  plan,  and  will  telegraph  me  on  receipt 
of  this,  I  will  forward  power  of  attorney  to  Mr.  Ware.  Telegraph  me 
*3'es,'  or  *  no.'  If '  no,'  I  will  go  on  at  once  to  Boston  with  my  wife,  and 
between  us  we  will  try  to  recover  our  lost  ground.  If  I  do  not  hear 
from  3'ou  by  the  18th  or  20th,  I  shall  conclude  'no.'  " 

The  defendant,  on  said  Juh'  17,  went  to  the  telegraph  office  of  the 
Western  Union  Telegraph  Company  in  Cape  May,  wrote  a  telegraphic 
despatch  directed  to  Dio  Lewis,  Oakland,  Cal.,  delivered  it  to  the  tele- 
graphic agent  and  operator  of  said  company,  and  paid  the  full  price  for 
its  transmission  to  Oakland,  and  gave  directions  to  have  it  forwarded 
at  once.  The  defendant  did  not  keep  a  copv  of  the  telegram.  He  gave 
notice  to  the  plaintiff  to  produce  the  telegram,  and  testified  that  he  had 
exhausted  all  the  means  in  his  power  in  Boston,  New  York,  and  New 
Jersey  in  his  endeavors  to  produce  the  telegram  ;  that  he  had  been  to 
the  Cape  May  office  of  the  compan}',  and  had  learned  that  the  operator 
to  whom  he  gave  his  despatch  was  not  in  charge  of  that  office  ;  that  he 
had  made  diligent  search  for  him  without  being  able  to  learn  his  where- 
abouts ;  and  that  in  this  search  he  had  had  the  aid  of  the  superintendent 
and  other  officers  of  the  company  in  Boston.  He  also  offered  to  prove, 
by  an  officer  of  the  company  in  Boston,  that  both  b}-  rule  and  custom 
of  the  company,  so  far  as  he  knew  the  custom,  the  despatches  received 
and  sent  from  all  the  offices  of  the  company  were  destroyed  after  they 
had  been  in  the  possession  of  the  company'  six  months.  If,  under  these 
circTimstances,  it  was  competent  to  prove  the  contents  of  said  despatch 
by  oral  testimony,  the  judge  found  that  the  word  telegraphed  was  "3-es." 

The  judge  also  found  that  Lewis  never  received  said  telegram  ;  that 
the  new  lease  to  be  made,  as  stipulated  in  the  letters  of  Lewis  and  the 
defendant,  was  to  be  like  the  former  lease  in  form,  with  the  various 
modifications  and  changes  contained  in  said  letters,  and  was  to  be  de- 
livered in  Boston,  and  the  consideration  then  paid  ;  and  that  the  Mr. 
Ware  mentioned  in  Lewis's  letter  was  the  plaintiff's  attorney,  residing 
in  Boston. 

The  defendant  contended  that  a  contract  was  completed  by  said 
letters  and  telegram  on  July  17,  under  the  law  of  the  State  of  New 
Jersey  ;  and  that  this  case  was  controlled  by  the  law  of  New  Jersey. 
The  judge  found  that  the  law  of  New  Jersey  is  as  stated  in  Hallock  v. 
Commercial  Ins.  Co.,  2  Dutcher,  268  ;  ruled,  as  matter  of  law,  that  the 
facts  as  above  set  forth  did  not  show  a  new  contract,  and  constituted 


112  LEWIS   V.   BROWNING.  [CHAP.   I. 

no  defence  to  this  action ;  and  found  for  the  plaintiff  in  the  sum  agreed 
upon.     The  defendant  alleged  exceptions. 

0.  T.  Gray,  for  the  defendant. 

D.  E.  Ware,  for  the  plaintiff,  was  not  called  upon. 

Gray,  C.  J.  In  M'Culloch  v.  Eagle  Ins.  Co.,  1  Pick.  278,  this  court 
held  that  a  contract  madejbj  mutual  letters  was  not  complete  until  the 


letter  accepting  the  offer  had  been  received  by  the  personjmaking  the" 
"oSfer ;  and  the  correctness  of  that  decision  is  maintained,  upon  an  able 
and  elaborate  discussion  of  reasons  and  authorities,  in  Langdell  on 
Contracts  (2d  ed.),  989-996.  In  England,  New  York,  and  New  Jersey, 
and  in  the  Supreme  Court  of  the  United  States,  the  opposite  view  has 
prevailed,  and  the  contract  has  been  deemed  to  be  completed  as  soon 
as  the  letter  of  acceptance  has  been  put  into  the  post-office  duly  ad- 
dressed. Adams  v.  Lindsell,  1  B.  «fe  Aid.  681  ;  Dunlop  v.  Higgins, 
1  H.  L.  Cas.  381,  398-400;  Newcomb  v.  De  Roos,  2  E.  &  E.  271  ; 
Harris's  case,  L.  R.  7  Ch.  587  ;  Lord  Blackburn  in  Brogden  v.  Metro- 
politan Railway,  2  App.  Cas.  666,  691,  692;  Household  Ins.  Co.  v. 
Grant,  4  Ex.  D.  216  ;  Lindley,  J.,  in  Byrne  y.  Van  Tienhoven,  5  C.  P.  D. 
344,  348  ;  2  Kent  Com.  477,  note  c. ;  Mactier  u.  Frith,  6  Wend.  103  ; 
Vassar  v.  Camp,  1  Kernan,  441 ;  Trevor  v.  Wood,  36  N.  Y.  807 ;  Hal- 
lock  V.  Commercial  Ins.  Co.,  2  Butcher,  268,  and  3  Butcher,  645  ;  Tayloe 
V.  Merchants'  Ins.  Co.,  9  How.  390. 

I5ut  this  case  does  not  require  a  consideration  of  the  general  ques- 
tion ;  for,  in  any  view,  the  person  making  the  offer  may  always,  if  he 
chooses,  make  the  formation  of  the  contract  which  he  proposes  de- 
pendent upon  the  actual  communication  to  himself  of  the  acceptance. 
Thesiger,  L.  J.,  in  Household  Ins.  Co.  v.  Grant,  4  Ex.  B.  223  ;  Pollock 
on  Cont.  (2d  ed.)  17  ;  Leake  on  Cont.  89,  note.  And  in  the  case  at 
bar,  the  letter  written  in  the  plaintiff's  behalf  by  her  husband  as  her 
agent  on  July  8,  1878,  in  California,  and  addressed  to  the  deiendant  at 
Boston,  appears  to  us  clearly  to  manifest  such  an  intention.  After 
proposing  the  terms  of  an  agreement  for  a  new  lease,  he  says:  "If 
3'ou  agree  to  this  plan,  and  will  telegraph  me  on  receipt  of  this,  I  will 
forward  power  of  attorney  to  Mr.  Ware,"  the  plaintiff's  attorney  in  Bos- 
ton. "  Telegraph  me  '  yes '  or  '  no.'  If  '  no,'  I  will  go  on  at  once  tc 
Boston  with  my  wife,  and  between  us  we  will  try  to  recover  our  lost 
ground.  If  I  do  not  hear  from  jou  bj'  the  18th  or  20th,  I  shall  con- 
clude '  no.' "  Taking  the  whole  letter  together,  the  offer  is  made  de- 
pendent upon  an  actual  communication  to  the  plaintiff  of  the  defendant's 
acceptance  on  or  before  the  20th  of  July,  and  does  not  discharge  the 
old  lease,  nor  bind  the  plaintiff  to  execute  a  new  one,  unless  the  accep- 
tance reaches  California  within  that  time.  Assuming,  therefore,  that 
the  defendant's  delivery-  of  a  despatch  at  the  telegraph  office  had  the 
same  effect  as  the  mailing  of  a  letter,  he  has  no  ground  of  exception  to 
the  ruling  at  the  trial. 

Exceptions  overruled} 

1  Household  Ins.  Co.  v.  Grant,  4  Ex.  D.  216,  223,  238 ;  Haas  v.  Myers,  111  111.  421, 
42?  :  Vassar  v.  Camp,  11  N.  Y.  441,  ace. 


SECT.   I.]  TINN   V.   HOFFMAN.  113 


TINN  V.   HOFFMAN  AND  COMPANY. 

In  the  Exchequer  Chamber,  Mat  14,  15,   1873. 

[Reported  in  29  Law  Times  (New  Series),  271.] 

This  was  an  action  brought  b}'  the  plaintiff  against  the  defendants 
to  recover  damages  in  respect  of  a  breach  of  contract  to  deliver  800 
tons  of  iron ;  and  by  the  consent  of  the  parties,  and  bv  order  of  Mar- 
tin, B.,  dated  30th  May,  1872,  the  facts  were  stated  for  the  opinion  of 
the  Court  of  Exchequer  in  the  following 

Special  Case. 

1.  The  plaintiff,  Mr.  Joseph  Tinn,  is  an  iron  manufacturer,  carrying 
on  business  at  the  Ashton  Row  Rolling  Mills,  near  Bristol ;  and  the 
defendant,  who  trades  under  the  name  and  style  of  Hoffman  and  Co.,  is 
an  iron  merchant,  carrying  on  business  at  Middlesboro'-on-Tees. 

2.  In  the  months  of  November  and  December,  1871,  the  following 
correspondence  passed  between  the  plaintiff  and  the  defendant  relating 
to  the  proposed  purchase  and  sale  of  certain  iron,  the  particulars  of 
which  fully  a]:)pear  in  the  letters  hereinafter  set  forth. 

The  plaintiff  to  the  defendant :  — 

Nov.  22,  1871. 
Messrs.  Hodman  and  Co. : 

Dear  Sirs,  —  Please  quote  your  lowest  price  for  800  to7is  No.  4 
Cleveland,  or  other  equally  good  brand,  delivered  at  Portishead  at  the 
rate  of  200  tons  per  month,  March,  April,  May,  and  June,  1872.  Paj^- 
ment  by  four  months'  acceptance. 

Yours  truly,  J.  Tinn. 

3.  The  defendants'  reply  :  — 

Royal  Exchange  Buildings,  Middlesbro'-on-Tees, 
24th  Nov.  1871. 
Josej)h  Tinn,  Esq.,  Bristol: 

Dear  Sir,  — We  are  obliged  by  your  inquiry  of  the  22d  inst.,  and 
b}'  the  present  beg  to  offer  you  800  tons  No.  4  forge  Middlesbro'  pig 
iron  (brand  at  our  option,  Cleveland  if  possible)  at  69s.  per  ton  deliv- 
ered at  Portishead,  delivery  200  tons  per  'm"bh"fli,  March,  April,  May*, 
and  June,  1872,  payment  b}'  your  four  months'  acceptance  from  date 
of  arrival. 

We  shall  be  veiy  glad  if  this  low  offer  would  induce  3-ou  to  favor  ua 

with  3'our  oi*dcr,  and  waiting  your  reply  by  return,  we  remain,  dear  Sir, 

Yours  truly,  \        A.  Hoffman  and  Co. 

4.  The  plaintiff  to  the  defendant :  — 

VOL.    I. 8  "X.   >.        ^       • 


114  TINN   V.    HOFFMAN.  [CHAP.    T. 

^^^     mf^^t^  Bristol,  27th  Nov.  1871. 

Messrs.  Hoffman  and  Co. : 

Dear  Sirs,  —  The  price  j'ou  ask  is  high.  If  I  made  the  quantity 
1,200  tons,  delivery  200  tons  per  month  for  the  first  six  months  of  next 
year  I  suppose  you  would  make  the  price  lower?  Your  reply  per  return 
will  oblige,  J.  Tinn. 

5.  The  defendant  to  the  plaintiff,  in  reply  :  — 

Royal  Exchange  Buildings,  Middleshro'-on-Tees, 
28th  Nov.,  1871. 
Joseph  Tinn,  Esq.,  Bristol: 

Dear  Sir,  —  In  reply  to  your  favor  of  yesterday,  we  beg  to  state 
that  we  are  willing  to  make  you  an  offer  of  further  400  tons  No.  4  forge 
Middlesbro'  pig  iron,  200  tons  in  Jan.,  200  tons  in  Feb.,  at  the  same 
price  we  quoted  you  by  ours  of  the  24th  inst.,  though  the  rate  of  freight 
at  the  above-named  time  will  doubtless  be  considerably  higher  than  that 
of  the  following  months. 

Our  to-day's  market  was  very  firm  again,  and  we  feel  assured  we 
shall  see  a  further  rise  ere  long. 

Kindly  let  us  have  your  reply  b}-  return  of  post  as  to  whether  you 
accept  our  offers  of  together  1,200  tons  and  oblige  yours  truly, 

-  ^.      ^  Hoffman  and  Co- 

6.  The  plaintiff  to  the  defendants :  — 

Bristol,  28th  Nov.,  1871. 

Messrs.  Hoffman  and  Co. : 

No.  4  Pig  iron. 

Dear  Sirs,  — You  can  enter  me  800  tons  on  the  terms  and  con- 
ditions named  in  your  favor  of  the  24th  inst.,  but  I  trust  30U  will  enter 
the  other  400,  making  in  all  1,200  tons,  referred  to  in  my  last,  at  68s. 
per  ton. 

Yours  faithfully,  Joseph  Tinn. 

7.  The  defendants'  reply :  — 

Royal  Exchange  Buildings,  Middlesbro'-on-Tees, 
29th  Nov.,  1871. 
Joseph  Tinn,  Esq.  : 

Dear  Sir,  —  We  are  obliged  by  your  favor  of  yesterday,  in  reply  to 
which  we  are  sorr}-  to  state  that  we  are  not  able  to  book  your  esteemed 
order  for  1,200  tons  No.  4  forge  at  a  lower  price  than  that  offered  to 
you  by  us  of  yesterday,  viz.,  69s.,  and  even  that  offer  we  can  only  leave 
you  on  hand  for  reply  by  to-morrow  before  twelve  o'clock.  Waiting 
your  reply,  we  remain,  dear  sir,  yours  trul}', 

A.  Hoffman  and  Co. 

8.  On  the  1st  Dec,  1871,  the  plaintiff  sent  a  telegram  to  the  defend- 
ants, of  which  the  following  is  a  copy  :  — 


SECT.   I.]  TESTN   V.   HOFFMAN".         '  115 

From  Tinn,  Askton. 

To  Hoffman  and  Co.,  Middlesbro'-on-Tees,  ^ 

Book  other  400  tons  pig  iron  for  me,  same  terms  and  conditions  ast4>t3^:i/^ 
before.  m  , 

And  on  the  same  da}^  the  plaintiff  sent  a  letter  to  the  defendants,  of    'TY^^ 
which  the  following  is  a  copy :  —  H      ^ 

1st  Dec,  1871.    ^"^^f^. 
Messrs.  Hoffman  and  Co.:  uKU^  * 

Dear  Sirs,  —  I  have  your  favor  of  the  29th  ult.  Please  enter  the 
remaining  400  tons  No.  4  Forge  Pig  at  69s.  ex-ship  Portishead,  deliv- 
ery to  commence  Jan.,  1872,  payment  by  four  months'  acceptance 
against  delivery.  Kindly  send  me  sold  note  for  the  800  and  400  tons, 
and  oblige,  yours  trul}-,  J.  Tinn. 

9.  The  following  correspondence  then  took  place  between  the  plain- 
tiff and  the  defendants'  clerk,  duly  authorized  in  that  behalf. 

The  defendants'  clerk  to  the  plaintiff:  — 

Royal  Exchange  Buildings,  Middlesbro'-on-Tees, 
1st  Dec,  1871. 
Joseph  Tinn,  Esq.,  Bristol: 

Dear  Sir, — We  have  your  telegram  of  this  day,  "Book  other  400 
tons  pig  iron,  same  terms  and  conditions  as  before,"  which  we  note  and 
shall  la}'  before  our  Mr.  Hoffman  on  his  return  next  week.  Yours 
truly,  for  A.  Hoffman  and  Co.,  C.  Jerveland. 

10.  Memorandum :  — 

2d  Dec,  1871. 
From  A.Hoffman  and  Co.,  3fiddlesbro'-onTees. 
To  Joseph  Tinn,  Esq.,  Bristol. 
The  contents  of  your  yesterda3''s  favor  is  noted,  and  we  shall  lay 
same  before  our  principal  on  his  return  next  week. 

11.  The  defendants  to  the  plaintiff:  — 

The  Queen's  Hotel,  Manchester, 
4th  Dec,  1871. 
Joseph  Tinn,  Esq.,  Bristol: 

Dear  Sir,  —  lam  in  receipt  of  telegram,  "Book  other  400  tons, 
same  terms  and  conditions  as  before,"  and  favor  of  1st  inst.  addressed 
to  my  firm,  in  reply  to  which  I  very  much  regret  to  state  that  I  am  not 
able  to  book  the  1,200  tons  in  question,  as  your  repl}-  to  ours  of  the 
28th  and  29th  Nov.  did  not  reach  us  within  the  stipulated  time ;  and 
as  I  had  other  offers  for  the  same  lot,  I  disposed  of  the  latter  previous 
to  my  leaving  Middlesbro'  and  receiving  j'our  decision. 

Trusting  to  be  more  fortunate  in  future,  I  remain,  dear  sir,  3-ours  truly, 

A.  Hoffman  and  Co. 

12.  The  plaintiff  to  the  defendants  :  — 


116  TINN   V.   HOFFMAN.  [CHAP.  I 

3Iessrs.  Hoffman  and  Co. : 

Dear  Sirs,  —  I  regret  yon  cannot  enter  me  the  400  tons  No.  4  Forge 
Pig  on  the  same  terms  as  the  800  tons.  Please  send  me  sold  note  for 
800  tons  per  return.     Yours  truly,  J.  Tinn. 

13.  The  reply  of  the  defendants  :  — 

Royal  ExchanffP  Buildings,  Middlesbro'-on-Tees, 
6th  Dec.,  1871. 
Joseph  Tlnn^  Esq.,  Sristol : 

Dear  Sir,  —  Your  favor  of  A'esterda^'  to  hand  ;  in  reply  to  which  we 
have  to  state  that  we  cannot  send  you  contract  for  pig  iron,  having  sold 
yon  none. 

The  quotation  for  1,200  tons  in  our  respect  of  29th  ult.  was  for  your 
acceptance  by  12  o'clock  the  30th  ;  and  failing  to  receive  such,  we  dis- 
posed of  the  iron,  being  under  other  offers,  as  already  intimated  to  you 
b}'  our  Mr.  Hoffman,  and  it  is  now  utterly  impossible  for  us  to  book 
you  on  the  quantity  j'on  require,  or  you  may  rest  assured  that  we 
willingly  would  do  so.     We  are,  dear  sir,  yours  trul}-, 

Pro  A.  Hoffman  and  Co.,  C.  Jerveland. 

14.  It  is  agreed  that  all  the  fticts  and  circumstances  mentioned  in 
the  above  correspondence  are  true,  and  that  the  court  are  to  have 
power  to  draw  all  inferences  of  facts  in  the  same  way  as  a  jury 
might  do. 

15.  Tlie  conrse  of  post  between  Bristol  and  Middlesbroup:h  is  one 
day. 

16.  The  plaintiff  contends  that  he  has  a  binding  contract  with  the 
defendant  whereby  the  defendants  are  bound  to  deliver  to  him  800  tons 
of  iron.  The  defendants  on  the  other  hand  contend  that  there  is  no 
such  contract,  and  refuse  to  deliver  any  of  the  said  iron. 

Thfi  qnpgti^pg  ft^''  th^  rtpiniqp  of  t.hp.  oxiuxi.  are,  first,  whether,  upon 
the  facts  stated  and  do^aments  set  out  in  thfij;^e,.lh£ie._is  any  binding 
contract  on  the  part  of  the  defendants  to  deliver  800  tons  of  iron  to  the 

plaintilf ;  secondly,  whether,  upon  JJi£_£acts^iHl'  (iottH«i£nts  setjoutin 

the  case,  there  is  any  biiidint!;  contract  on  the  part  of  the  defendants  to 
deliver  any  quantity  of  iron  to  the  plaintiff,  and  if  yea,  what  qmantilyr^ 
and  on  what  terms  and  conditions'.  " 

If  the  court  shall  be  of  opinion  in  the  affirmative  on  either  of  these 
questions,  then  it  has  been  agreed  between  the  parties  in  writing,  in 
accordance  with  the  provisions  of  the  Common  Law  Procedure  Act, 
1852,  that  the  amount  of  damages  for  breach  of  such  contract  shall  be 
ascertained  by  reference  to  an  arbitrator  to  be  appointed  by  the  said 
plaintiff  and  defendants,  or  in  case  of  difference  by  any  judge  of  one  of 
the  Superior  Courts  of  Common  Law,  and  judgment  for  the  amount 
entered  up  for  the  plaintiffs  with  costs  of  suit. 

If  the  court  shall  be  of  opinion  in  the  negative,  then  judgment  of  nol. 
pros,  with  costs  of  defence  shall  be  entered  up  for  the  defendants.  **""- 


SECT.    I.]  TINN   V,    HOFFMAN.  117 

In  the  Court  of  Exchequer,  Bramwell,  Channell,  and  Pigott,  BB., 
held  the  defendant  entitled  to  judgment;   Kelly,  C.  B.,  dissented. 

Kingdon,  Q.  C,  and  Arthur  Charles,  for  the  plaintiff. 

A.  L.  Smith  and  11.  Lloyd,  A.  C,  for  the  defendants. 

Brett,  J.  The  question  iSj^h^herjagonat£ue^_^nstructi 
correspondence ^lere  is  a  binding  contract  betiKeaa  tlm  pifljptiff  nt^fl 
the  defen^nts  for  the  gnUjbonaofTronjit  6^.9.  It  is  argued  on  the  one 
sfde'That  such  a  contract  is  disclosed  because,  it  is  said,  that  the  de- 
fendants' letter  of  the  24th  November  is  an  offer  for  the  sale  of  800  tons 
of  iron,  and  this  letter  of  the  28th  November  leaves  open  the  time  for 
accepting  that  offer  of  the  24th  November,  and  makes  a  new  offer  with 
regard  to  another  400  tons  ;  and  that  the  defendants'  offer  of  the  24  th 
November  being  thus  opened  by  their  letter  of  the  28th,  the  plaintiffs' 
letter  of  the  28th  is  an  acceptance  of  the  defendants'  offer  of  the  24th. 
On  the  other  side  it  is  argued  that  tlie  defendants'  letter  of  the  28th 
November  is  not  an  opening  of  their  offer  of  the  24th,  but  that  it  is  an 
offer  with  regard  to  1,200  tons  ;  and  that  even  if  it  were  a  separate  offer 
with  regard  to  800  tons  and  400  tons,  still  that  the  true  view  of  the 
matter  is  not  that  it  reopens  the  letter  of  the  24th,  but  that  it  makes  a 
new  offer  with  regard  to  the  800  tons,  and  another  separate  offer  with 
regard  to  400  tons  ;  and  that,  upon  such  a  view,  the  renewed  offer 
with  regard  to  800  tons  is  not  accepted,  because  the  letter  of  the  plain- 
tiff of  the  28th  November  was  not  in  answer  to  that  offer,  but  was  a 
letter  crossing  it.  Now,  with  regard  to  the  construction  of  the  defend- 
ants' letter  of  the  28th  November,  it  seems  to  me  that  we  must  con- 
sider that  the  defendant's  letter  of  the  24th  November  is  in  answer  to 
a  request  of  the  plaintiff's  of  the  22d  November  for  an  offer  with  regard 
to  800  tons,  and  is  therefore  an  offer  by  them  with  regard  to  800  tons. 
That  offer  left  it  open  to  the  plaintiff  to  accept  it  within  a  period  which 
is  to  be  computed  b}-  tlie  return  of  post.  I  agree  that  the  words  "  Youj 
reply  by  return  of  post"  fixes  the  time  for  acceptance,  and  not  the 
manner  of  accepting.^  But  that  time  elapsed  ;  there  was  no  acceptance" 
within  the  limited  time.  So  far  from  there  being  an  acceptance,  it 
seemsjp  me  thatthe  plaintiff's  letter  of  the  27th  November  rejects  that 
ofEer:  it  rejects  it  on  the  ground  that  the  price  is  higher  than  the^ 
plaintiff  is  willing  to  give^  Thfi^ffer  is,  therefore,  not  accepted  withyT 
tjie  limited  time,  but  is  rejected,  and  it  seems  to  me  is  at  once  dead. 
The  letter  of  the  27th  then  asks  for  an  otter  with  respect  to  1,200  tons^ 
and  the  letter  of  the  28th  November  is  a  letter  written  "  In  repl}'  to 
j'our  favor  of  yesterday,"  —  that  is,  In  reply  to  your  request  for  an  offer 
with  regard  to  1,200  tons,  —  "I  now  make  3'ou  this  offer,"  That  seems 
to  show  that  the  letter  of  the  28th  November  of  the  defendants  is  an 
offer  with  regard  to  1,200  tons,  and  not  with  regard  to  800  tons  and  400 
tons  separatel}.     The  way  in  which  the  offer  with  regard  to  the  1,200 

1  As  to  the  effect  of  these  words,  see  Ortman  v.  Weaver,  11  Fed.  Rep.  3.58,  362; 
Maclay  v.  Harvey,  90  lU.  .525  ;  Bernard  v.  Torrance,  5  G.  &  J.  383  ;  Taylor  v.  Rennie, 
35  Barb.  272  ;  Howells  v.  Stroock,  50  N.  Y.  App.  Div.  344. 


118  TINN   V.   HOFFMAN.  [CHAP.    I. 

tons  is  made  is  this:  "  "Witli  regard  to  tlie  first  800  of  them,  T  make 
you  a  new  offer  upon  the  same  terms  as  I  made  in  the  former  offer  on 
the  24th.  With  regard  to  the  remaining  400  tons,  I  offer  30U  to  de- 
liver tliem  at  the  same  price,  but  at  different  periods  of  delivery."  I 
think  that  the  defendants'  letter  of  the  28th  November,  being  a  letter  in 
answer  to  a  request  with  regard  to  1,200  tons,  is  an  offer  with  regard 
to  1,200  tons,  and  that  no  such  offer  was  ever  accepted  ;  but  even  if  it 
could  be  taken  that  it  was  a  separate  offer  with  regard  to  800  tons  and 
400  tons,  I  cannot  accede  to  the  view  that  it  reopened  the  offer  of  the  24th 
November.  That  offer  was  dead,  and  was  110  longer  binding  upon  the 
defendants  at  all  ;  and  thorofore  it  seems  to  me  to  l>e  a  wrong  phrase  to 
say  that  it  rrnjwned  the  offer  of  the  24th  November.  The  onl^y  legal" 
way  of  construing  it  is  to  say  that  it  is  a  new  oifer  with  regard  to  800 
tons.  If  it  were  a  separate  offer,  which  I  should  think  it  was  not,  it 
then  would  be  a  new  offer  with  regard  to  800  tons,  and  a  separate  offer 
with  regard  to  400  tons  ;  but,  even  if  it  were  so,  I  should  think  that 
the  new  offer  with  regard  to  the  800  tons  had  never  been  accepted,  so 
as  to  make  a  binding  contract.  The  new  offer  would  not,  in  my  opin- 
ion, be  accepted  by  the  fact  of  the  plaintiffs'  letter  of  the  28th  Novem- 
ber crossing  it.  If  the  defendants'  letter  of  the  28th  November  is  a 
new  offer  of  the  800  tons,  that  could  not  be  accepted  b}'  the  plaintiff 
until  it  came  to  his  knowledge,  and  his  letter  of  the  28th  November 
could  only  be  considered  as  a  cross  offer.  Put  it  thus  :  If  I  wrijte.lo_a^ 
persfiu  and  say ,^ "  If  you  can ^iye  mej£6jOOO^ foniiy  lnjuye,'Twill  sell 
it  vou,"  and  on  the  same 'Hay,  and  before  that  letter  reacTTes"htnrr"he 
writes  tg  me,  saying,  "  If  you  will  sell  nie  }onr  house  for  £G,000  I  will 
buy  it,"  that  would  be  two  oft'ers  crossing  each  other,  and  cross  offers 
are  not  an  acceptance  of  each  other;  therefore  there  will  be  no  offer  of 
either  party  accepted  by  the  other.  That  is  the  case  where  the  con- 
tract is  to  be  macTe  by  the  lettei's,  and  by  the  letters  only.  I  think  it 
would  be  different  if  there  were  already  a  contract  in  fact  made  in 
words,  and  then  the  parties  were  to  write  letters  to  each  other,  which 
crossed  in  the  post ;  those  might  make  a  very  good  memorandum  of  the 
contract  alread}'  made,  unless  the  Statute  of  Frauds  intervened.  But 
where  the  contract  is  to  be  made  by  the  letters  themselves,  you  cannot 
make  it  by  cross  offers,  and  say  that  the  contract  was  made  by  one 
party  accepting  the  offer  which  was  made  to  him.  It  seems  to  me, 
therefore,  in  both  views,  that  the  judgment  of  the  court  below  was 
right. 

Blackburn,  J.  I  also  think  that  the  judgment  should  be  affirmed. 
The  question  turns  upon  the  true  construction  of  the  defendants'  letter 
of  the  28th  November,  and  that  must  be  taken  with  the  other  letter 
to  which  it  is  an  answer.  The  letter  of  the  24th  is  an  offer  of  800  tons. 
No  reply  was  sent  b}'  return,  and,  that  offer  being  one  which  required 
an  answer  by  return  of  post,  I  agree  with  my  brother  Brett  that  it  was 
gone  as  soon  as  there  was  no  reply  b}'  return.  It  was  perfecth*  com- 
petent to  the  defendants  to  renew  it.     Then,  on  the  27th  November- 


SECT.   I.]  TINN   V.   HOFFjMAN.  119 

the  plaintiff  writes  a  letter,  sajing :  "  The  price  you  ask  is  high  ; "  so  that 
not  onh'  was  that  out  of  time,  for  the  25th  November  was  the  day  the 
answer  was  to  have  been  sent,  but  it  was  not  an  acceptance  of  the  offer, 

—  it  was  a  refusal.  "  The  price  you  ask  is  high,"  and  he  goes  on  :  *■'  If 
I  made  the  quantity  1,200  tons,"  delivery  so  and  so,  "  I  suppose  you 
would  make  the  price  lower.  Your  reply  by  return  will  oblige."  That  is 
a  request  on  the  part  of  the  plaintiff  :  "  If  I  will  make  the  order  larger, 
will  3'ou  make  the  price  lower?"  To  that  came  in  answer  the  defend- 
ants' letter  of  the  28tli  November  which  has  been  read  several  times, 
and  which  I  need  not  read  over  again.  I  think,  taking  the  two  letters 
together,  the  one  in  answer  to  the  other,  we  can  see  what  they  mean. 
If,  in  answer  to  that  letter  of  the  28th  November  written  b}-  the  de- 
fendants to  the  plaintiff,  in  which  thej'  ask  for  an  answer  b}'  return  of 
post,  there  had  been  a  letter  sent  saying,  "  I  will  accept  the  800  tons 
and  not  take  the  400  tons,"  and  that  had  been  relied  upon  as  a  binding 
contract,  and  that  the  defendants  had  resisted  that,  and  said:  "We 
did  not  offer  3'ou  800  tons,  we  offered  3-ou  1,200  tons  if  you  would  take 
them,  but  not  1,200  tons  tliat  you  might  split  into  two  quantities,  tak- 
ing the  800  and  rejeciing  the  400  tons,"  the  question  would  have  been 
raised  whether  this  letter  of  the  defendants,  of  the  28th  November,  read, 
as  it  must  be  read,  with  the  plaintiff's  letter  of  the  27th,  was  an  offer  of 
that  sort  which  m}-  brothers  Hontman  and  Quaix  think  it  was,  or 
whether  it  was,  as  the  majority'  of  the  court  have  already'  said,  an  offer  of 
1,200  tons,  and  1,200  tons  onl}-.  _I  am  _Qf  opinion  tha^  it  was  an  offer 
Qfjthe  1,200  tons,  and  the  1,200  tons  onlr.  I  do  not  think  it  necessarj' 
to  repeat  what  has  been  said  alreadj^,  but  that  is  a  sufficient  reason,  &nd 
that  is  the  onh-  reason,  as  I  understand,  stated  in  the  Court  of  Ex- 
chequer as  a  ground  for  their  judgment,  and  that  is  the  point  upon 
which  that  judgment  turns.  But  then  there  arises  another  question : 
on  that  same  28th  November  the  plaintiff,  before  he  received  or  knew 
of  the  defendants'  letter  of  tlie  28th  November,  had  written  a  letter 
which  I  read  to  be  an  offer  on  his  part:  "I  will  take  800  tons,  at  the 
price  of  69s."  That  letter  crossed  the  letter  of  the  defendants,  and  I 
think  m}'  brothers  Honyman  and  Quain  necessarily',  as  part  of  their 
judgment,  are  of  opinion  that  that  offer,  crossing  the  other  offer,  and 
being  ad  idem,  according  to  their  construction  of  the  first  contract,  did 
make  a  binding  engagement  between  tlie  parties.  It  is  not  necessary 
in  the  present  case  for  the  Court  of  Exchequer  Chamber  to  decide  that 
point,  and  therefore  what  I  am  now  going  to  sa3'  is  not  to  be  considered 
at  all  as  part  of  the  judgment  of  the  Court  of  Error,  but  as  my  own 
individual  opinion.  "VVlien  a  contract,  is  inade_betw^een  .tjio  parties, 
ihecg  is^a  proifliacjbj^iwie,  in  cuiisideration  of  the  promise  made  by  the 
ejjier ;  there^flire  '^wf^i  agtipntino  minds,  tlie  parties  agreeing  in  opinion, 
anji^ne  having  promised  in  consideration  of  the  proniisi'  uf  the  otlier, 

—  there  is  anii»«4Tst»ge  of  promises  :  Imt  1  do  not  tliinl;  exelianging 
.offers  would,   upon  principle,  be   at  all   the  same  thing.     There  is,  I 


120  HIACTIER   V.    FRITH.  [CHAP.   I. 

believe,  a  total  absence  of  authorit}'  on  the  point.  I  do  not  think, 
though  I  am  not  sure,  that  the  question  has  ever  been  raised  before. 
The  promise  or  offer  being  made  on  each  side  in  ignorance  of  the 
promise  or  the  offer  made  on  the  other  side,  neither  of  them  can 
be  construed  as  an  acceptance  of  the  other.  Either  of  the  parties 
may  write  and  sa}',  "  I  accept  j-our  offer,  and,  as  you  perceive,  I 
have  already  made  a  similar  offer  to  you,"  and  then  people  would  know 
what  the}'  were  about ;  I  think  either  side  might  revoke.  Such  grave 
inconvenience  would  arise  in  mercantile  business  if  people  could  doubt 
whether  there  was  an  acceptance  or  not  that  it  is  desirable  to  keep  to 
the  rule  that  an  offer  that  has  been  made  should  be  accepted  by  an 
acceptance  such  as  would  leave  no  doubt  on  the  matter.  I  am  not 
aware,  as  I  said  before,  that  any  point  of  this  sort  has  ever  been  raised 
before,  and  consequent!}-  this  must  not  be  considered  as  the  judgment 
of  the  majority  of  the  Exchequer  Chambero 

Judgment  of  the  tnajority  of  the  court  below  affirmed} 


MACTIER'S   ADMINISTRATORS,  Appellants,  AND   FRITH, 

Respondent. 

New  York  Court  of  Errors,  December,  1830. 

[Reported  in  6  Wendell,  103.] 

Appeal  from  Chancer}'.  At  New  York,  in  the  autumn  of  1822,  the 
respondent  and  Henry  Mactier,  the  intestate,  agreed  to  embark  in  a 
commercial  adventure,  in  which  they  were  to  be  jointly  and  equally 
interested.  Frith  was  to  direct  a  shipment  of  200  pipes  of  brandy 
from  France  to  New  York,  to  be  consigned  to  Mactier,  who  was  to 
ship  to  the  respondent  at  Jacrael,  in  St.  Domingo,  provisions  to  the 
amount  of  the  invoice  cost  of  the  brandy,  and  the  respondent  was  to 
place  the  shippers  of  the  brandy  in  funds  by  shipments  of  coffee  to 
France,  in  French  vessels,  and  the  parties  were  to  share  equally  in  the 
result  of  the  speculation  all  around. 

In  pursuance  of  this  arrangement,  Frith,  on  the  5th  September,  1822, 
wrote  Fire  brace,  Davidson,  &  Co.,  a  mercantile  house  at  Havre,  to 
ship  200  pipes  of  brandy  to  New  York  to  the  consignment  of  Mac- 
tier.  On  the  24th  of  December,  Frith,  who  had  returned  to  Jacmel, 
where  he  did  business  as  a  merchant,  wrote  a  letter  to  Mactier  on  a 
variety  of  subjects,  in  which  was  contained  a  paragraph  in  these  words  : 
"  I  also  have  the  pleasure  of  handing  you  copies  of  Messrs.  Firebrace, 

1  Archibald  and  Keating,  JJ.,  delivered  concurriug,  and  Hontman  and 
QuAiN,  JJ.,  dissenting,  opinions.  The  statement  of  the  decision  in  the  lower  court 
has  been  abbreviated. 


SECT.    I.]  MACTIER   V.    FRITH,  121 

Davidson,  &  Co.'?;  letters  regarding  the  brandy  order.  B3--tbe-liye,  as 
your  brother,  before  1  left  New  York,  deeUned  taking  the  interest  I 
offered  him  in  this  speculation,  and  wishing  to  confine  myself  in  busi- 
ness as  much  as  possible,  so  as  to  bring  my  concerns  to  a  certain  focus, 
I  would  propose  to  you  to  fake  the  adven ture  soleh^  to  your  own  account. 
holding  the  value  to  cover  the  transacdonT^o  mj-  account  in  New  York.' 
On  the  17th  January,  1823,  Mactier  wrote  to  Frith,  acknowledging  the 
receipt  of  his  letter  of  the  24th  ult.  ;  thanks  him  for  sending  the  copy  of 
Firebrace,  Davidson,  &  Co.'s  letter  on  the  subject  of  the  brandy  order ; 
sa3's  that  he  has  received  a  letter  from  them,  informing  that  the  brandy 
would  be  shipped  and  leave  Bordeaux  about  the  1st  of  December  then 
past;  and  adds,  "This  has  been  from  the  first  a  favorite  speculation 
with  me,  and  am  pleased  to  say  it  still  promises  a  favorable  result ;  but 
to  render  it  complete,  I  am  desirous  the  speculation  should  go  forwaro 
in  the  way  first  proposed,  thereby  making  it  a  treble  operation.  As  you 
have,  however,  exjn-essed  a  wish  that  I  should  take  the  adventure  to 
my  own  account,  /  shall  delay  coming  to  any  determination  till  I  again 
hear  fr^m^u.  The  prospect  of  war  between  France  and  Spain  may 
defeat  the  object  of  this  speculation,  as  far  as  relates  to  the  shipment  of 
pro"\asions  hence  to  Hayti,  to  be  invested  in  coffee  for  France,  in  which 
ca^e  I  will  at  once  decide  to  take  the  adventure  to  my  own   account.     Oui 


London  accolllltaiTlown  to  the  5th  of  December,  speak  confidently  of  a 
war  between  France  and  Spain,  —  a  measure  which,  if  carried  into  effect, 
would  operate  to  your  disadvantage."^  Also,  "The  next  arrival  from 
Europe  will  probablj*  decide  the  question  of  peace  or  war,  and  I  will 
lose  no  time  in  communicating  the  same  to  you  ;  "  and  also,  "  Let  what 
will  happen,  I  trust  ^ou  will  in  no  way  be  a  sufferer."  On  the  7th 
March,  1823,  Frith  wrote  Mactier.^  making  no  other  allusion  to  the  last 
letter  of  Mactier  than  the  following  :  "  1  have  received  your  esteemed 
favors  of  the  17th  and  31st  January.  and_  note  their  respective  contents." 
On  the  twelfth  day  of  March,  1823,  the  ship  La  Claire  arrived  at  New 
York,  laden  with  the  brandy  in  question,  and  was  at  the  wharf  on  the 
morning  of  the  13th  of  March.  A  clerk  of  Mactier  testified  that  he 
had  a  conversation  with  Mactier  about  the  time  the  brandy  arrived, 
perhaps  the  morning  after,  and  Mactier  then  said  he  should^  take  it  to 
kiMi^df.  A  merchant  of  New  York  also  testified  that  Mactier  con- 
sulted with  hiin  on  the  subject  of  some  brandy  which  he  expected  to 
arrive  ;  there  was  some  offer  for  his  taking  it  on  his  own  account,  and 
he  appeared  inclined  to  take  it.  From  the  state  of  things,  he  advised 
Mactier  to  take  it,  and  there  was  a  letter  drafted  by  Mactier  upon  the 
subject,  in  which  the  merchant  made  some  alterations.  The  letter 
stated  that  he,  Mactier,  should  take  the  brandy  to  his  own  account. 
On  the  17th  of  March,  Mactier  entered  the  brandy  at  the  custom- 
house as  owner,  and  not  as  consignee,  took  the  usual  oath,  and  gave  a 
bond  for  the  duties.  On  the  twenty-second  day  of  March,  he  sold  150 
pipes  of  the  brandy  on  the  wharf  to  several  commercial  houses,  and 

1  This  letter  was  reeeived  on  the  7th  of  April.     1  Paige,  434,  442. 


122  MACTiEii  V.  ri'jTii.  [chap.  I. 

took  tlieir  notes  for  the  i)ri('e  of  tlie  same.  The  remaining  50  pipes 
were  i)nt  in  the  [)ubli(.'  store,  and  remained  there  in  bond,  the  liqui- 
dated duties  not  having  been  secured  to  ])e  paid  by  Mactier.  On  the 
twenty-fifth  da}'  of  March,  ]Mactier  wrote  a  letter  directed  to  Frith  at 
Jacmel,  in  which  he  said  :  "I  have  now  to  advise  the  arrival  of  French 
ship  La  Claire  with  the  200  pipes  of  brandy,  and  that  in  consequence 
of  the  probability  of  war  between  France  and  lS[)ain,  and  in  compliance 
with  the  wish  expressed  in  your  regarded  favor  of  the  24  th  December, 
and  my  answer  thereto  of  the  17th  January  \aiity^,Juu:^^/ecided  to  take 
(his  adventure  to  »iij  itirti  nrr.oi/nL  1  therefore  credit  you  M'ith  the 
amount  of  the  invoice,"  amounting  to  $14,254  jf\)''^.  To  this  letter  was 
attached  a  postscript,  dated  the  31st  of  March.  On  the  twenty-eigntu 
day  of  IMarch,  Frith  wrote  a  letter  to  Mactier,  dated  at  Jacmel,  in 
which,  spea'dng  of  the  brandy  in  question,  he  says:  "  With  regard  to 
this  adventure,  I  would  wish  to  confirm,  if  altogether  satisfactory  to 
you,  what  I  mentioned  to  you  some  time  ago,  asui  whicli  1  omitted 
to  i'ei)eat  to  you  in  m}-  previous  letter,  in  reply  to  yours  of  the  17i!i 
of  January.  I  find  the  more  one  does  in  this  countr}',  in  the  present 
state  of  trade,  the  more  one's  alTairs  get  shackled."  Previcnis  to  the 
arrival  of  tliese  two  last  letters  at  their  res})ective  places  of  direction. 
Mactier  was  dead,  he  having  departed  this  life  on  the  10th  of  April. 
]!<'2S.  On  the  21st  of  April,  Frith  again  wrote  a  letter  addressed  to 
J^Iactier,  in  which  he  acknowledges  the  receipt  of  his  letter  of  the 
2.jth  of  March,  says  he  has  noted  its  contents,  and  requests  Mac;- 
tier  to  charter  on  his  account  a  stanch,  first-class  vessel,  and  send 
out  to  Jacmel  by  her  400  barrels  of  flour,  150  barrels  of  pork,  150 
barrels  of  beef,  100  barrels  of  mackerel,  &c.,  &c.  In  the  mean  time, 
however,  Mactier  having  died,  administration  of  his  goods,  &c.,  was 
granted  to  A.  N.  Lawrence  and  another,  who,  in  May,  1823.  gave 
the  requisite  bonds  to  secure  the  duties  on  the  50  pipes  of  bi-andy 
which  had  not  been  bonded  for  by  Mactier  in  his  lifetime,  except  by 
the  general  bond  on  entering  the  goods  at  the  custom-hotise,  and  tot)k 
the  50  pipes  from  the  ptiblic  store  and  sold  them  at  public  auction. 

The  respondent,  unwilling  to  come  in  as  a  general  crcflitor  of  IMactier 
and  receive  a  pro  rata  distribution,  on  the  1st  of  April,  1.S24,  filed  his 
bill  in  the  Court  of  Chancery,  alleging  that  the  brand}   was  shi})ped 
from  France  on  his  sole  account,  and  that  Mactier  was  only  the  con 
signee  thereof. 

By  the  answer  it  was  admitted  that  the  defendants  had  founil  among 
the  papers  of  Henry  Mactier  two  invoices  of  the  200  pijjcs  of  brandy, 
similar  in  all  respects,  except  that  one  states  the  shii)ment  to  have  been 
made  "  to  the  address  and  for  the  account  of  Plenry  Mactier,"  and  the 
other  states  it  to  have  been  made  ''  for  the  account  of  the  complainant 
to  the  address  of  Henry  IMactier."  The  first  of  the  invoices  was  used 
upon  entering  the  brandy  at  the  custv)m-house.  It  also  appeared  in 
evidence  that  on  the  first  day  of  March,  1823,  Mactier  eflfected  an 
insurance  on   com  missions  arising  on  a  consignmcmt  from  Bordeaux  tx: 


SECT.   I.]  ]SIACTIEri    V.    FKITH.  123 

New  York,  to  tlie  amount  of  SloOO.  In  a  petty  cash-book  of  Mactier'e 
there  is  the  following  entr}- :  "  1823,  March  17,  John  A.  Frith's  sales 
of  brandy,  paid  entiy  at  custom-house,  eighty  cents."  The  clerk  of 
Mactier,  who  made  this  entry,  testified  that  the  name  of  Frith,  pretixed 
to  the  entry  in  the  pett}-  cash-book,  does  not  necessarily  prove  that  the 
arandy  was  Frith's,  but  it  shows  that  he  at  that  time  supposed  the 
brandy  to  be  Frith's :  if  it  had  then  belonged  to  Mactier,  oi'  if  Maclii/ 
had  decided  to  take  it,  and  any  entr^-  in  the  books  had  beta  made 
showing  that  fact,  he  would  have  entered  it,  '"Sales  of  brandy  Dr. 
for  entering,"  &c.  At  the  time  of  making  the  entry,  he  considered 
the  fact  of  ownership  contingent.  Mactier  afterwaids  directed  the 
account  to  be  opened  in  the  books,  charging  the  brandy  to  himself, 
the  account  to  be  '•  Sales  of  brandy."  An  entry  was  made  in  the  day- 
i.'uok.  of  the  twenty-eighth  day  of  March,  crediting  Frith  with  the 
invoice  amount  of  the  brand}'.  Pantries,  he  said,  are  sometimes  made 
several  days  after  the  transaction  ;  then  the  entry  refers  back  to  the 
true  date  of  the  transaction,  mentioning  the  time.  The  entr\'  was 
made  by  the  thuty-tirst  day  of  March.  He  also  testified  that  the  letter 
of  the  13th  of  March,  mentioned  in  the  complainant's  bill,  was  copied 
on  the  night  of  that  day,  but  he  had  no  recollection  when  it  left  the 
office ;  it  possibly  might  not  have  gone  until  the  La  Claire  arrived. 

On  the  20th  May,  1825,  Chancellor  Sanford  made  an  order  of  refer- 
ence to  a  master.  Under  this  order  the  master  reported  that  the 
complainant  was  not  the  owner  of  the  shipment  of  brandy,  neither  at 
the  time  of  the  sale  of  the  part  thereof  made  bj-  IVIactier  in  his  life- 
time, or  of  the  other  part  thereof  made  by  the  defendants  as  his 
administrators  since  his  death,  and  had  no  lien  on  the  brand}',  or  on 
the  proceeds  thereof  in  the  hands  of  the  administrators.  To  this 
report  the  complainant  excepted,  and  the  cause  was  heard  upon  the 
exceptions  before  Chancellor  Walworth,  who,  in  March,  1829,  allowed 
the  exception  to  that  part  of  the  master's  report  above  stated  (othe^ 
exceptions  to  other  parts  of  the  report,  which  it  has  not  been  deemed 
essential  to  state,  were  disallowed),  and.  decreed  that  the  report  be 
refen-ed  back  to  the  master  to  alter  and  correct  the  same,  and  to  take 
and  state  an  account,  and  report  the  amount  due  the  complainant,  on 
the  principle  that  he,  as  survivor,  is  entitled  to  the  net  proceeds  of  the 
adventure  of  brandy,  so  far  as  they  can  be  traced  and  identified,  and 
has  a  specific  lien  on  the  net  proceeds  of  the  50  pipes  of  ])i-andv  sold 
b}-  the  administrators,  and  on  the  proceeds  of  the  notes  given  for  the 
150  pipes  which  remained  uncollected  or  not  passed  away  at  the  time 
of  Mactier's  death,  or  on  so  much  as  is  necessary  to  satisfy  the  balance 
due  complainant  for  paj-meut  and  disbursements  on  account  of  that 
Adventure,  after  deducting  from  those  proceeds  the  balance  of  the 
amount  paid  for  duties  and  expenses,  if  an}',  over  and  above  the  amount 
of  proceeds  of  the  shipment  of  brandy  which  were  received  by  Mactier 
LO  his  lifetime.     P'rom   this  decree  the  defendants  appealed.     F'or  the 


124  MACTIEE,   V.    FRITH.  [CHAP.   I. 

reasons   of  the    Chancellor   foi'  the   decree    pronounced   hy  him,  see 
1  Paige,  434.     The  cause  was  argued  here  by 

S.  Boyd  and  S.  A.  Talcott^  for  the  appellants. 

S.  Stevens  and  G.  Griffin,  for  the  respondent. 

Bj  Mr.  .Justice  Marct.  The  object  of  the  bill  filed  in  tliis  case  is  to 
obtain  from  the  administrators  of  Mactier  the  proceeds  of  the  50 
pij>es  of  brand}'  which  came  to  theh*  possession  after  his  death,  and  the 
HTOount  of  such  notes  taken  on  the  sale  of  the  150  pipes  on  the  "22(1 
)f  March,  1823,  as  were  uncollected  and  undisposed  of  at  the  death 
of  Mactier,  or  at  least  so  much  thereof  as  ma}'  be  necessary  to  [n\\ 
the  balance  due  the  respondent  for  disbursements  on  account  of  the 
adventure.  The  question  on  which  the  decision  in  this  case,  as  I 
apprehend,  mainh'  depends,  relates  to  the  alleged  sale  of  the  brand} 
to  I\Iactier.  There  are  many  definitions  of  what  constitutes  a  contract, 
but  all  of  them  are  of  course  substantially  alike.  Powell  states  a^^-^con^" 
tract  to  be  a  transaction  in  which  each  part}'  comes  undc  an  obliga- 
tion to  the  other,  and  each  reciprocally  acquires  a  right  to  what  is 
promised  by  the  other.  Powell  on  Cont.  4.  In  testing  the  validity  of 
contracts  many  things  are  to  be  considered.  The  contract  that  the 
appellants  set  up  in  this  case  is  alleged  by  the  respondent  to  be  defi- 
cient in  several  essential  requisites.  AVhen  that  was  done  which,  on 
the  assumption  of  there  being  parties  capable  of  contracting,  was 
necessary,  as  the  respondent  contends,  to  complete  it,  Mactier  was 
dead.  If  the  contract  was  only  in  progress  of  execution,  and  there 
remained  but  a  single  act  to  be  done  to  complete  it,  his  death  rendered 
the  performance  of  that  act  impossible  ;  it  suspended  the  proceedings 
at  the  very  point  where  they  were  when  it  occurred. 

Where  tlie  negotiation  between  the  contracting  parties,  residing  at  a 
distance  from  each  other,  is  conducted,  as  it  usually  is,  by  letters,  it  is 
necessary,  in  order  that  their  minds  may  meet,  that  the  will  of  the 
party  making  the  proposition  to  sell  should  continue  until  his  letter 
shall  have  reached  the  other,  and  he  shall  have  signified,  or  at  least 
had  an  opportunity  to  signify,  his  acceptance  of  the  proposition.  This 
Pothier  holds  to  be  the  legal  presumption,  unless  the  contrary  appears. 
His  language  is  :  Cette  volonte  est  presume  tant  qu'il  ne  par  ait  rien  de 
contraire.  This  doctrine,  which  presumes  the  continuance  of  a  willing- 
ness to  contract  after  it  has  been  manifested  by  an  offer,  is  not  confined 
to  the  civil  law  and  the  codes  of  those  nations  which  have  constructed 
their  systems  with  the  materials  drawn  from  that  exhaustless  store-house 
of  jurisprudence ;  it  is  found  in  the  common  law ;  indeed,  it  exists  of 
necessity  wherever  the  power  to  contract  exists  in  parties  separated  from 
each  other.  T^p.  r"^Q  of  the  common  law  is,  that  :jidierever  thejexist- 
ence  of  a  particular  subject-matter  or  rtlntion  has  been  once  proved,  its 
continuance  is  presumed  till  proof  be  o-ivm  tc)  t.hp  r>ftfitrary^  or  till  a^dif- 
ferent  presumption  be_aJSorded  by  the  nature-aiLJJifi— e»bi}ect-matter. 
16  East,  55  ;  Stark.  Ev.  1252.  The  case  of  Adams  v.  Lindsell, 
1  Barn.  &  Aid.  681,  proceeds  upon  and  affirms  the  pnnciple,  that  the 


SECT.    I.]  MACTIER   V.   FRITH.  125 

willingness  to  contract  thus  manifested  is  presumed  to  continue  for  the 
time  limited,  and,  if  that  be  not  indicated  by  the  offer,  until  it  is  ex- 
pressly revoked  or  countiTv-ailed  by  a  contrar}'  presumption.  In  that 
case  it  was  said,  "The  defendants  must  be  considered  in  law  as  mak- 
ing, during  eveiy  instant  of  time  their  letter  was  travelling,  the  same 
identical  offer  to  the  plaintiffs  ;  and  then  the  contract  is  complete  by 
the  acceptance  of  it  by  the  latter."  Against  the  authority  of  the  case 
of  Adams  v.  Lindsell,  we  have  urged  on  us  a  decision  of  a  court  of  the 
highest  res])e<'tability  in  one  of  our  sister  States.  The  case  if  M'Cul- 
loch  V.  The  Eagle  Ins.  Co.,  1  Pick.  278,  conflicts  in  principle,  acconl- 
ing  to  m}'  Aiews  of  it,  with  the  case  decided  by  the  King's  Bench.  I 
should  have  been  pleased  to  see  these  tribunals  harmonize  upon  a  ques- 
tion of  no  small  importance  to  the  commercial  world  ;  and  1  have 
therefore  deliberately  weighed  the  ingenious  attempts  made  to  reconcile 
these  decisions  upon  this  point ;  but  these  attempts  appear  to  me  to 
have  been  unsuccessful.  A  refinement  which  would  distinguish  between 
a  contract  for  insurance,  and  one  for  the  sale  of  goods,  in  relation  to 
the  assent  of  the  parties,  might  relieve  us  from  the  embarrassment 
which  the  different  principles  of  these  decisions  is  calculated  to  pro- 
duce ;  but  to  appl}'  such  a  distinction  hereafter  would  doubtless  involve 
courts  in  a  still  more  distressing  embarrassment.  Distinctions  which 
are  not  founded  on  a  difference  in  the  nature  of  things  are  not  entitled 
to  indulgence  ;  they  tend  to  make  the  science  of  law  a  collection  of  arbi- 
ti'ary  rules  appealing  to  factitious  reasons  for  their  support,  consequently 
difficult  to  be  acquired,  and  often  of  uncertain  apphcation.  The  two 
cases  referretl  to  should  have  had  apphed  to  them  the  same  rule  of  law, 
and  we  are  required  to  say  what  that  rule  is,  in  deciding  the  case  now 
under  consideration. 

The  principle  of  the  decision  of  the  King's  Bench  is,  simplj'  that  the 
acceptance  of  an  offer  made  through  the  medium  of  a  letter  binds  the 
bargain,  if  the  party  making  the  offer  has  not  revoked  it,  as  he  has  a 
right  to  do  before  it  is  accepted.  The  rule  laid  down  by  the  Supreme 
(!]ourt  of  Massachusetts  regards  the  contract  as  incomplete  until  the 
party  making  the  offer  is  notified  of  the  acceptance,  or  until  the  time 
when  he  should  have  received  it,  the  party  accepting  having  done 
what  was  incumbent  on  him  to  give  notice.  The  Chancellor,  in  decid- 
ing this  case,  gave  his  sanction  to  the  latter  rule  :  '■'■  To  make  a  valid 
^contract,"  he  sa3's,  '^  it  is  not  only  necessary  that  the  minds  of  "'"con- 
tracting  parties  should  meet  on  tne  suoject  of  the  contract,  but  they 
must  know  that  fact."  The  decision  of  the  court  of  Massachusetts" 
makes  Knowledge,  by  the  party  tendering  the  offer,  of  the  other's 
acceptance,  essential  to  the  completion  of  the  contract.  If  one  party  is 
not  bound  till  he  knows  or  might  know,  and  therefore  is  presumed  to 
know,  that  the  other  has  accepted,  the  accepting  part}',  on  the  same 
principle,  ought  not  to  be  bound  till  he  knows  the  ofiering  party  has 
not  recalled  the  offer  before  knowledge  of  the  acceptance.  The  prin- 
ciple of  that  case  would  bring  the  matter  to  the  point  stated  bj'  th« 


126  MACTIER   r.    FTMTH.  [CHAP.    I. 

Chancellor;  viz.,  the  parties  must  know  that  their  minds  meet  on  tlie 
subject  of  the  contract.  If  a  bargain  can  be  completed  between  absent 
parties,  it  must  be  when  one  of  them  cannot  know  the  fact  whether  it 
be  or  be  not  completed.  It  cannot  begin  to  be  obligatory  on  the  one 
before  it  is  on  the  other ;  there  must  be  a  precise  time  when  the  obU- 
gation  attaches  to  both,  and  this  time  must  happen  when  one  of  the 
parties  cannot  know  that  the  obligation  has  attached  to  him  ;  the  obli- 
gation does  not  therefore  arise  from  a  knowledge  of  the  present  con- 
cuiTence  of  the  wills  of  the  contracting  parties.  All  the  authorities 
Htate  a  contract,  or  an  agi'eement  (which  is  the  same  thing),  to  be 
apqreqatia,Mi£nttum .  Why  should  not  this  meeting  of  the  minds ^  which 
makes  the  contract,  also  indicate  the  moment  when  it  becomes  obli- 
gatory ?  I  might  rather  ask,  is  it  not,  and  must  it  not  be,  the  moment 
when  it  does  become  obligatory?  If  the  party  making  the  offer  is 
not  bound  until  he  knows  of  this  meeting  of  minds,  for  the  same 
reason  the  party  accepting  the  offer  ought  not  to  be  bound  when  his 
acceptance  is  received,  because  he  does  not  know  of  the  meeting  of 
the  minds ;  for  the  offer  may  have  been  withdrawn  before  his  accept- 
ance was  received.  If  more  than  a  concurrence  of  minds  upon  a 
distinct  proposition  is  required  to  make  an  obligator^^  contract,  the 
definition  of  what  constitutes  a  contract  is  not  correct.  Instead  of 
being  the  meeting  of  the  minds  of  the  contracting  parties,  it  should  be 
a  knowledge  of  this  meeting.  It  was  said  on  the  argument,  that  if 
concurrence  of  minds  alone  would  make  a  valid  contract,  one  might 
be  constructed  out  of  mere  volitions  and  uncommunicated  wishes ;  I 
think  such  a  result  would  not  follow.  The  law  does  not  regard  bare 
volitions  and  pure  mental  abstractions.  When  it  speaks  of  the  opera- 
tions of  the  mind,  it  means  such  as  have  been  made  manifest  by  overt 
acts ;  when  it  speaks  of  the  meeting  of  minds,  it  refers  to  such  a  meet- 
ing as  has  been  made  known  by  proper  acts ;  and  when  thus  made 
known  it  is  effective,  although  the  parties  who  may  claim  the  benefit 
of,  or  be  bound  b}'  a  contract  thus  made,  may  for  a  season  remain 
ignorant  of  its  being  made. 

Testing  the  rules  of  law  laid  down  in  the  two  cases  to  which  I  have 
referred  by  the  authority  of  reason,  and  the  practical  results  that  are 
likely  to  flow  from  them,  it  does  appear  to  me  that  we  are  not  left  at 
liberty  to  hesitate  about  the  choice.  If  we  are  inclined,  from  the  force 
of  abstract  reason,  to  prefer  the  rule  laid  down  b}'  the  Court  of  King's 
Bench,  that  inclination  will  be  greath'  strengthened  by  a  recurrence  to 
the  opinions  of  courts  and  jurists.  The  Common  Pleas,  in  England, 
seem  to  me  to  have  given  their  api)roval  to  the  decision  of  Adams  v. 
Lindsell,  4  Bing.  653.  Judge  Washington,  in  delivering  the  opinion 
of  the  Court  in  EUason  v.  Henshaw,  4  Wheaton,  228,  said :  "  Until  the 
terms  of  the  agreement  have  received  the  assent  of  both  parties,  the 
negotiation  is  open,  and  imposes  no  obligation  on  either."  The  infer 
ence  from  this  proposition  is,  that  the  assent  of  the  parties  to  tlie  terms 
of  the  agreement,  and  not  their  knowledge  of  it,  completes  the  con 


SECT.    I.j  MACTIER    V.    FRITH.  127 

*Taot.  It  was  decided  in  the  Circuit  Court  of  the  United  States  for 
I'ennsylvania,  that  contracts  are  formed  by  the  offer  on  the  one  hand, 
and  an  acceptance  on  tlie  other.  After  acceptance  the  contract  is 
obligator}'  on  both.  Coxe's  Dig.  102.  In  this  case,  knowledge  of  the 
acceptance  is  not  brought  into  view  as  necessary  to  constitute  the 
obligation.  Both  the  Roman  law  and  the  French  civil  code,  as  we 
have  seen  by  the  references  ah'eady  made,  contain  a  doctrine  in  accord- 
ance with  the  principle  of  these  cases.  I  think  I  am  therefore  war- 
ranted in  saving  that  the  proposition  may  be  considered  as  established, 
that  the  acceptance  of  a  written  offer  of  a  contract  of  sale  consum- 
mates the  bargain,  provided  the  offer  is  standing  at  the  time  of  the 
acceptance. 

What  shall  constitute  an  acceptance  will  depend  in  a  great  measure 
upon  circumstances.  The  mere  detennination  of  the  mind,  unacted 
on,  can  never  be  an  acceptance.  Where  the  offer  is  by  letter,  the 
usual  mode  of  acceptance  is  the  sending  of  a  letter  announcing  a  con- 
sent to  accept ;  where  it  is  made  by  a  messenger,  a  determination  to 
accept,  returned  through  him,  or  sent  by  another,  would  seem  to  be  all 
the  law  requires,  if  the  contract  may  be  consummated  without  writ- 
ing. There  are  other  modes  which  are  equally  conclusive  upon  the 
partie«3 :  keeping  silence,  under  certain  circumstances,  is  an  assent  to  a 
proposition  ;  any  thing  that  shall  amount  to  a  manifestation  of  a  formed 
determination  to  accept,  communicated  or  put  in  the  proper  way  to  be 
communicated  to  the  party  making  the  offer,  would  doubtless  com- 
plete the  contract ;  but  a  letter  written  would  not  be  an  acceptance, 
so  long  as  it  remained  in  the  possession  or  under  the  control  of  the 
writer.  An  acceptance  is  the  distinct  act  of  one  party  to  the  contract, 
as  much  as  the  offer  is  of  the  other  ;  the  knowledge,  by  the  part}'  mak- 
ing the  offer,  of  the  determination  of  the  party  receiving  it,  is  not  an 
ingi'edient  of  an  acceptance.  It  is  not  compounded  of  an  assent  by 
one  party  to  the  terms  offered,  and  a  knowledge  of  that  assent  b}-  the 
other. 

I  will  now  apply  this  law  to  the  facts  of  this  case.  Frith's  offer  to 
sell  his  interest  in  the  brandy  certainly  continued  till  his  letter  of  the 
24th  of  December  was  received  at  New  York,  and  Mactier  had  a  fair 
opportunity  to  answer  it.  If  the  answer  of  the  17th  of  Januar}'  had 
contained  an  unqualified  acceptance,  the  bargain  would  have  been 
closed  when  it  was  sent  away  for  Jacmel ;  but  the  offer  was  not  then 
accepted.  There  was  a  promise  to  accept  upon  a  contingenc}' ;  for 
Mactier  sa3's,  after  alluding  to  the  prospect  of  a  war  between  France 
and  Spain,  "  in  which  case,"  that  is,  in  case  of  such  a  war,  "  I  will  at 
once  decide  to  take  the  adventure  to  my  own  account."  This  concluded 
nothing.  If  the  event  had  actually  happened,  and  Frith  had  insisted 
on  enforcing  this  conditional  acceptance,  it  would  not  have  been  in  his 
power  to  do  so.  The  most  that  Mactier  said  was,  that  if  an  expected 
event  happened,  he  would  do  an  act  which  would  complete  the  bar- 
gain     The  happening  of  the  event  could  not,  without  the  act,  compLn.^ 


128  MACTIER   V.   FRITH.  [CHAP.   I. 

it.  The  Roman  law  regarded  the  tense  of  the  verb  used  bj  tue  ixn»- 
tracting  parties  to  determine  whether  the  bargain  was  concluded : 
VerbiDn  imperfecti  temporis  rem  adhuc  imperfectum  significat.  There 
is  a  wide  difference  between  a  promise  to  give  an  assent  to  a  proposi- 
tion for  a  contract  on  the  happening  of  a  contingency,  and  the  annunci- 
ation of  a  present  assent  to  it.  If^tlie  expected  event  happens,  and  the 
act  pronusedia  perfoxmecUJheJjargiiin  is  closed ;  but  it  is  the  prom- 
ised  acceptance,  and  not  the  happening  of  the  event,  that  gives  valid- 
fl^'  to  the  contract.  If,  in  this  case,  the  offer  of  Prith  had  been  w 
Macticr  to  take  "tho  brandy  on  the  happening  of  a  French  and  Spanish 
war,  and  Mactier  had  promised  to  decide  to  take  it  in  such  an  event, 
the  simple  fact  of  his  taking  it  after  the  war  would  have  enabled 
Frith  to  treat  him  as  the  purchaser  of  it.  Such  an  act  would  have 
been  a  valid  acceptance ;  but  a  conditional  acceptance  of  an  uncondi- 
tional offer,  followed  up  by  acts  of  the  acceptor,  after  the  condition 
was  fulfilled  on  which  the  acceptance  depended,  might  not  be  consid- 
ered as  completing  the  bargain,  without  the  acquiescence  of  the  party 
making  the  offer  in  those  acts,  because  the  minds  of  the  parties  would 
not  have  met  on  the  precise  terms  of  the  contract. 

To  conclude  the  bargain,  Mactier  must  have  accepted  the  offer  as 
tendered  to  him  hy  Frith,  and  that  acceptance  must  have  been  while 
the  offer,  in  contemplation  of  law,  was  still  held  out  to  him.  That 
there  was  an  acceptance,  or  rather  that  Mactier  did  all  that  was 
incumbent  on  him  to  do  to  effect  an  acceptance  was  not  denied ;  but  it 
was  insisted,  on  the  part  of  the  respondent,  that  it  was  made  after  the 
offer  was  withdrawn.  It  will  be  necessary  to  consider  when  this 
acceptance  took  place,  as  prepai'atory  to  settling  the  fact  of  the  con- 
tinuance of  the  offer  down  to  that  time.  There  is  not  the  slightest 
evidence  of  the  determination  on  the  part  of  Mactier  to  take  the  brandy 
before  the  seventeenth  day  of  March.  The  insurance  that  he  effected  on 
his  commissions  on  the  1st  of  March  disproves  the  existence  of  such 
a  determination  on  that  day ;  but  if  the  situation  of  the  parties  was 
changed,  and  Frith  was  now  endeavoring  to  set  up  the  contract,  I  am 
at  a  loss  to  conceive  how  Mactier's  representatives  could  withstand  the 
force  of  the  facts  which  took  place  on  the  17th  of  March.  Jn  answer 
tp^  tlie  offer,  INIactier  delayed  coming  to  a  determination  thereon,  "BlHr 
^omised  to  accept  it  if  there  sliould  l)e  a  war  ;  on  tlie  17th  of  Marcb^ 
^when  that  event  was  considered  settled,  he  entered  the  brandy  as  his 
own  property,  and  told  Ms  clerk. ihiit^e  had  determined  to  take  it. 
But  if  there  should  be  an^'  doubt  as  to  the  effect  of  this  conductTtEere 
can  be  none  as  to  his  subsequent  acts.  P>J  ^  letter  dated  the_25th, 
with  a_postscript  of  the  31st  of  March,  he  accej^ts  the  offer.  This 
letter  was  immediately  transmitted  to  Frith,  and  as  soon  as  the  28th 
of  March  entries  were  made  in  his  books,  showing  that  he  had  become 
the  purchaser.  "Pnough  was  done  by  the  31st  to  constitute  an  accept- 
ance of  Frith's  offer  and  to  complete  the  bargain,  if  the  offer  can  be 
considered  as  standing  till  that  d«.v. 


SECT.    I.]  MACTIER    V.   FRITH.  129 

;\n  offor.  wlien  onpf  mnrlo,  onntiQues,  as  I  have  heretofore  shown,  to 
the  satisfaction  of  my  own  mind  at  least,  nntil  it  is  expreaaJJi^^reYoked 
or  until  circumstances  authorize  a  presumption  that  it  is  revoked.  The 
o^r  itself  may  show  verj'  clearly  when  the  presumption  of  revocation 
attaches.  Where  it  is  made  to  be  replied  to  by  return  mail,  the  party 
to  whom  it  is  addressed  must  at  once  perceive  that  it  is  not  to  stand  for 
an  acceptance  to  be  transmitted  after  the  mail.  If  an  oifer  stands  until 
it  is  expressly  withdrawn,  or  is  presumed  to  be  withdrawn,  whether  it 
is  held  out  to  a  party  at  a  particular  period  or  not,  is  a  matter  of  fact. 
Then  we  are  to  determine,  as  a  matter  of  fact,  whether  Frith's  offer 
^as  held  out  for  Mactier's  acceptance  until  the  31st  of  March  ;  if  Frith 
intended  it  should  stand  so,  and  he  viewed  himself  as  tendering  it  to 
Mactier  down  to  that  time,  we  are  bound  to  regard  it  as  standing, 
unless  his  intention  was  the  result  of  the  fraudulent  conduct  of  Mactier. 
The  acts  of  Frith,  after  the  death  of  Mactier,  could  do  nothing  towards 
completing  an  unfinished  contract ;  but  I  think  they  may  be  fairly 
adverted  to  for  the  purpose  of  ascertaining  his  intentions  in  relation  to 
the  continuance  of  his  offer.  On  the  7th  of  March  he  acknowledges 
Mactier's  letter  of  the  17th  of  Januar}-,  which  did  not  decUne,  as  it  has 
been  construed  to  do,  the  offer,  but  apprised  him  that  it  was  kept  under 
advisement ;  and  by  using  the  expression,  "  noting  the  contents,"  Frith 
is,  I  think,  to  be  understood  as  yielding  to  the  proposed  delay.  If  a 
doubt  as  to  this  construction  of  that  letter  could  spring  up  in  the  mind, 
it  would  be  at  once  removed  by  the  perusal  of  the  letter  of  the  28th  of 
the  same  month.  In  that  he  expresses  a  wish  to  confirm  what  he  had 
said  in  the  letter  making  the  offer  to  sell,  and  declares  that  he  had  in  a 
previous  letter,  which  must  mean  that  of  the  7th,  omitted  to  commu- 
nicate the  same  thing.  In  answering  Mactier's  letter  which  contained 
the  acceptance  of  his  offer,  he  recognizes  the  bargain  as  closed,  and 
gives  directions  as  to  investing  the  proceeds  of  the  brandy.  All  the 
subsequent  correspondence  acquiesces  in  the  sale.  It  appears  to  me  to 
be  impossible  to  saj',  after  reading  the  letters  of  Frith  written  subse- 
quent to  his  knowledge  of  Mactier's  acceptance,  that  he  did  not  con- 
sider the  offer  as  held  out  to  Mactier  down  to  the  time  when  it  was 
accepted,  and  the  bargain  closed  by  that  acceptance  ;  and  I  think  we 
must  adjudge  it  to  have  been  closed,  unless  the  agreement  was  nugatory 
by  reason  that  the  thing  to  which  it  related  had  not  an  actual  or  poten- 
tial existence  when  the  contract  was  consummated.^  .   .   . 

Whereupon,  on  the  question  being  put.  Shall  the  decree  of  the  Chan- 
cellor appealed  from  be  reversed?  Chief  Justice  Savage  and  Jus- 
tices Sutherland  and  Marcy,  and  eighteen  Senators,  voted  in  the 
affirmative;  and  three  Senators  voted  in  the  negative, — viz..  Senators 
McCartt,  Todd,  and  Wheeler. 

The  decree  of  the  Chancellor  was  accordingly  reversed  with  costs. 

1  A  portion  of  the  opinion  is  omitted.  Concurring  opinions  were  delivered  by  Sen- 
ators Benton,  Maynard,  Oliver,  and  Throop. 


130  TYHEAT   V.   CROSS.  [CHAP.    I. 

EDWARD   WHEAT   and   Others   v.    LEMUEL   CROSS. 
Maryland  Court  of  Appeals,  April  Term,  18d^. 

[Reported  in  31  Mart/land,  99.] 

Bartol,  C.  J.,  delivered  the  opinion  of  the  Court. 

This  suit  was  brought  by  the  appellee  to  recover  the  price  of  a 
horse  sold  to  the  appellants. 

The  plaintiff  resided  in  Frostburg,  and  the  defendants  were  engaged 
in  the  business  of  buying  and  selling  horses  in  Baltimore.  The  con- 
tract of  sale  was  made  by  correspondence  between  the  parties  through 
the  mails. 

The  facts  of  the  case,  so  far  as  it  is  material  to  state  them,  were  as 
follows:  On  the  23d  of  August,  1867,  the  defendants  received  the 
horse  into  their  possession,  to  be  sold  on  commission,  at  that  time 
apparently  sound  and  in  good  condition.  On  the  12th  of  Septembei, 
1867,  they  addressed  a  letter  to  the  plaintiff,  stating  that  the  horse 
had  been  sick,  but  is  doing  well  at  this  time,  and  offering  $140  fc/ 
him  clear  of  all  expenses,  and  saying,  "you  can  draw  on  us  at  sigh  ; 
for  $140."  This  letter  was  received  on  the  15th  or  16th  of  Septem- 
ber; on  the  16th  the  plaintiff  signified  his  acceptance  of  the  offer  by 
drawing  on  the  defendants  for  $140.  The  draft  was  sent  on  that 
day,  and  on  the  17th  the  defendants  refusing  to  pay  the  draft,  it  was 
protested. 

On  the  16th  of  September,  the  defendants  addressed  a  letter  to  the 
plaintiff  withdrawing  their  offer  of  the  12th,  stating  that  "when  they 
wrote  they  did  not  think  the  horse  was  so  bad,  but  since  it  has  turned 
out  to  be  'farcy,'  they  would  not  buy  at  any  price,"  and  directing 
him  "not  draw  on  them  for  the  money,  that  they  will  not  pay  the 
draft  until  they  see  how  the  horse  gets."  This  letter  was  not  received 
by  the  plaintiff  till  after  he  had  accepted  the  offer  contained  in  the 
letter  of  the  12th,  by  sending  the  draft. 

In  the  argument  of  the  case  two  positions  have  been  taken  by  the 
defence  — 

1st.  That  there  was  not  such  mutual  assent  between  the  parties  as 
to  constitute  a  binding  contract. 

2d.  That  the  offer  by  the  defendants  was  made  through  mistake  of 
a  material  fact  as  to  the  condition  of  the  horse,  and  the  nature  of  the 
disease  under  which  it  was  suffering;  and  was  withdrawn  as  soon 
as  the  mistake  was  discovered,  and  the  acceptance  thereof  was  not 
binding  upon  them.^ 

1st.  On  the  first  question,  we  consider  the  law  well  settled  that 
where  parties  are  at  a  distance  from  each  other,  and  treat  by  corre- 
spondence through  the  post,  an  offer  made  by  one  is  a  continuir 

1  Part  of  the  opinion,  holding  the  mistake  immaterial,  is  omitted. 


SECT.    I.] 


ELIASON   V.    HENSHAW. 


131 


offer  until  it  is  received,  and  its  acceptance  then  completes  the 
aggregatio  menfium  necessary  to  make  a  binding  bargain.  The  bar- 
gain is  complete  as  soon  as  the  letter  is  sent  containing  notice  of 
acceptance.  This  rule  applies  where  the  offer  and  acceptance  are 
unconditional. 

The  offer  may  be  withdrawn,  and  the  withdrawal  thereof  is  effec- 
tual so  soon  as  the  notice  thereof  reaches  the  other  party;  but  if 
before  that  time  the  offer  is  accepted,  the  party  making  the  offer  is 
bound,  and  the  withdrawal  thereafter  is  too  late. 

In  this  case  it  appears  the  defendants'  letter  of  withdrawal  was 
sent  on  the  same  day  on  which  the  notice  of  the  plaintiff's  acceptance 
of  their  previous  offer  was  transmitted,  and  it  has  been  argued  that 
the  07ms  is  on  the  plaintiff  to  show  that  the  sending  of  the  acceptance 
preceded  the  sending  of  the  letter  of  withdrawal.  This  position  is 
not  correct;  it  is  quite  immaterial  to  inquire  whether  the  defendants' 
letter  of  the  16th,  or  the  draft  of  the  same  date,  was  first  sent. 
^^Until  the  notice  of _the  withdrawal  of  the  offer  actually  reached  jhe 
plaintiff,  the  offer  was  continuing,  and  the  acceptance  thereof  com- 
.pleted^the  contract. 

This  point  was  expressly  decided  in  Tayloe  v.  Merchants'  Fire 
Ins.  Co.,  9  Howard,  390.  That  was  a  case  arising  upon  an  insur- 
ance contract,  but  the  reasoning  of  the  Court  on  this  question,  and 
the  principles  decided,  are  applicable  alike  to  all  contracts  made  by 
correspondence  between  parties  at  a  distance  from  each  other.  There 
the  terms  upon  which  the  company  was  willing  to  insure  were  made 
known  by  letter,  and  it  was  held  *^J,hat  tjie-^mitfact  was  complete. 

len  the  insured  placed  a  letter  in  the  post-office  accepting  the 
terms. 


ELIASON      ET  AL.    V.  HENSHAW. 


Supreme  Court  of  the  United  States,  Feb.  17,  20,  1819. 


[Reported  in  4.  WJieaton,  225,  4  Curtis,  382.] 

Error  to  the  Circuit  Court  for  the  District  of  Columbia. 

Jo7ies  and  Key,  for  the  plaintiff  in  error. 

Swann,  for  the  defendant  in  error. 

Washington,  J.,  delivered  the  opinion  of  the  Court. 

This  is  an  action,  brought  by  the  defendant  in  error,  to  recover 
damages  for  the  non-performance  of  an  agreement,  alleged  to  have 
been  entered  into  by  the  plaintiffs  in  error,  for  the  purchase  ol  a  quan- 
tity of  flour  at  a  stipulated  price.  The  evidence  of  this  contract,  given 
in  the  court  below,  is  st.ated  in  a  bill  of  exceptions,  and  is  to  the  fol- 


lowing effect  i 

mh  of  FebruaryjJiLL 


the  plaintiff  ^<^  ^hf  ^^^'^"^^nij^i  r1>ifprl  i\]P 
lich  thei^sav^s-  ^^OaptaiiLQonn  informs  us^ 


132  ELIASON   V.    HENSHAW.  [uHAP.   I. 

that  you  have  a  quantity  of  flour  to  dispose  of.  We  are  in  the  practice 
of  purchasing  flour  at  all  times  in  Georgetown,  and  v\ill  be  glad  to 
serve  30U,  eithet  in  receiving  3'our  flour  in  store  when  the  markets  are 
dull,  and  disposmg  of  it  when  the  markets  will  answer  to  advantage, 
or  we  will  purchase  at  market  price  when  delivered  ;  if  you  are  dis- 
posed to  engage  two  or  three  hundred  barrels  at  present,  we  will  give 
you  $9.50  per  barrel,  deliverable  the  first  water  iu  Gein-getown,  or  any 
service  we  can.  If  you  should  want  an  advance,  please  write  us  by 
mail,  and  will  send  you  part  of  the  money  in  advance."  In  a  postscrii  t 
they  add:  "Please  write  by  return  of  wagon  whether  you  accept  ooi 
offer."  This  letter  was  sent  from  the  house  at  which  the  writer  then 
was,  about  two  miles  from  Harper's  Ferry,  to  the  defendant  at  his  mill, 
at  Mill  Creek,  distant  about  twenty  miles  from  Harper's  Ferr} ,  b}'  a 
wagoner  then  employed  by  the  defendant  to  haul  flour  from  his  mill 
to  Harper's  Ferry,  and  then  about  to  return  home  with  his  wagon. 
He  delivered  the  letter  to  the  defendant  on  the  14th  of  the  same 
month,  to  which  an  answer,  dated  the  succeeding  day,  was  written  by 
the  defendant,  addressed  to  the  plaintiffs  at  Georgetown,  and  despatched 
by  a  mail  which  left  Mill  Creek  on  the  19th,  being  the  first  regular 
mail  from  that  place  to  Georgetown.  In  this  letter  the  writer  saj-s : 
"  Your  favor  of  the  10th  instant  was  handed  me  by  Mr.  Chenoweth  last 
evening.  I  take  the  earliest  opportunity  to  answer  it  by  post.  Your 
proposal  to  engage  300  barrels  of  flour,  delivered  in  Georgetown  by 
the  first  water,  at  $9.50  per  barrel,  I  accept,  and  shall  send  on  the  flour 
by  the  first  boats  that  pass  down  from  where  my  flour  is  stored  on  the 
river ;  as  to  any  advance,  will  be  unnecessary,  —  paj'ment  on  delivery 
is  all  that  is  required." 

On  the  25th  of  the  same  month,  the  plaintiffs  addressed  to  the 
defendant  an  answer  to  the  above,  dated  at  Georgetown,  in  which  they 
acknowledge  the  receipt  of  it,  and  add  :  "  Not  having  heard  from  you 
before,  had  quite  given  over  the  expectation  of  getting  3'our  flour, 
more  particularly  as  we  requested  an  answer  by  return  of  wagon  the 
next  day,  and  as  we  did  not  get  it,  had  bought  all  we  wanted." 

The  wagoner,  b}-  whom  the  plaintiffs'  first  letter  was  sent,  informed 
them,  when  he  received  it,  that  he  should  not  probably  return  to  Har- 
per's Ferry,  and  he  did  not  in  fact  return  in  the  defendant's  employ. 
The  flour  was  sent  down  to  Georgetown  some  time  in  March,  and  the 
lehvery  of  it  to  the  plaintiffs  was  regularly  tendered  and  refused. 

Upon  this  evidence,  the  defendants  in  the  Court  below,  the  plaintiffs 
in  error,  moved  that  Court  to  instruct  the  jury,  that,  if  they  beUeved 
the  said  evidence  to  be  true  as  stated,  the  plaintiff  in  this  action  was 
not  entitled  to  recover  the  amount  of  the  price  of  the  300  barrels  of 
flour,  at  the  rate  of  $9.50  per  barrel.  The  Court  being  divided  in 
opinion,  the  instruction  prayed  for  was  not  given. 

The  question  is,  whether  the  court  below  ought  to  have  given  the 
instruction  to  the  jury,  as  the  same  was  prayed  for.  If  they  ought, 
the  judgment,  which  was  in  favor  of  the  plaiiitift'  in  that  court,  must  be 
reversed. 

It  is  an  undeniable  principle  of  the  law  of  contracts,  that  an  offer  of 


SECT.   I.]  ELIASON   V.    HENSHAW.  133 

,a  bargaJD  by  one  person  to  another  imposes  no  obligation  upon  tHe 
former,  until  it  is  accepted  by  the  latter  aecgrding  to  the  termajn 
which  the  offer  was  made.  An}'  qualification  of  or  departure  from 
those  terms  invalidates  the  offer,  unless  the  same  be  agreed  to  by  the 
person  who  made  it.  Until  the  terms  of  the  agreement  have  received 
the  assent  of  both  parties,  the  negotiation  is  open,  and  imposes  no 
obligation  upon  either. 

In  this  case,  the  plaintiffs  in  error  offered  to  purchase  from  the 
defendant  two  or  three  hundred  barrels  of  flour,  to  be  delivered  at 
Georgetown  by  the  first  water,  and  to  pay  for  the  same  S9.50  per 
barrel.  To  the  letter  containing  this  oflCer  they  required  an  answer  by 
the  return  of  the  wagon  by  which  the  letter  was  despatched.  This 
wagon  was  at  that  time  in  the  service  of  the  defendant,  and  emploj'ed 
hy  him  in  hauling  flour  from  his  mill  to  Harper's  Ferr3%  near  to  which 
place  the  plaintiflTs  then  were.  The  meaning  of  the  writers  was  obvi- 
ous. The}-  could  easily  calculate,  by  the  usual  length  of  time  which 
was  employed  by  this  wagon  in  travelhng  fi'om  Harper's  Ferry  to 
Mill  Creek,  and  back  again  with  a  load  of  flour,  about  what  time  they 
should  receive  the  desired  answer ;  and,  therefore,  it  was  entirely 
unimportant  whether  it  was  sent  by  that  or  another  wagon,  or  in  any 
other  manner,  pro\-ided  it  was  sent  to  Harjier's  Ferry,  and  was  not 
delaj'ed  be^'ond  the  time  which  was  ordinarily  emplo^-ed  by  wagons 
engaged  in  hauling  flour  from  the  defendant's  mill  to  Harper's  Ferry. 
Whatever  uncertaint}'  there  might  have  been  as  to  the  time  when  the 
answer  would  be  received,  there  was  none  as  to  the  place  to  which  it 
was  to  be  sent ;  this  was  distinctly  indicated  by  the  mode  pointed  out 
for  the  conve3'ance  of  the  answer.  The  place,  therefore,  to  which  the 
answer  was  to  be  sent  constituted  an  essential  part  of  the  plaintiflfs' 
offer. 

It  appears,  however,  from  the  bill  of  exceptions,  that  no  answer  to 
this  letter  was  at  an}-  time  sent  to  the  plaintiffs  at  Harper's  Ferry. 
Their  offer,  it  is  true,  was  accepted  b}'  the  terms  of  a  letter  addressed 
Georgetown,  and  received  by  the  plaintiffs  at  that  place  ;  but  an  accept- 
ance communicated  at  a  place  different  from  that  pointed  out  by 
the  plaintifis,  and  forming  a  part  of  their  proposal,  imposed  no  obliga- 
tion binding  upon  them,  unless  the}'  had  acquiesced  in  it,  which  they 
declined  doing. 

It  is  no  argument  that  an  answer  was  received  at  Georgetown  ;  the 
plaintiffs  in  error  had  a  right  to  dictate  the  terms  upon  which  thej 
would  purchase  the  flour ;  and,  unless  they  were  complied  with,  they 
were  not  bound  by  them.  All  their  arrangements  may  have  been 
made  with  a  view  to  the  circumstance  of  place,  and  they  were  the  only 
judges  of  its  importance.  There  was,  therefore,  no  contract  concluded 
between  these  parties ;  and  the  Court  ought,  therefore,  to  have  given 
the  instruction  to  the  jury  which  was  asked  for. 

Judgment  reversed.  Cause  remanded,  with  directions  to  award  ft 
venire  facias  de  novo^ 


134  WHITE   V.    CORLTES.  [CHAP.   I. 

SAMUEL   P.  WHITE,  Eespondent,  v.  JOHN  W.   CORLIES  and 
JONATHAN    N.   TIFT,    Appellants. 

New  Yokk  Court  of  Appeals,  November  17-20,  1871. 

[Reported  in  26  New  York,  467.] 

Appeal  from  judgment  of  the  General  Term  of  the  first  judicial  dis- 
trict affirming  a  judgment  entered  upon  a  verdict  for  plaintiff. 

The  action  was  for  an  alleged  breach  of  contract. 

The_42laintiff  was  a  buildei',  with  his  place  of  business  in  Fortieth 
Street,  New~TorRT^-. 

The  defendants  were  jiieichantsjit  32  De}-  Street. 

In  September,  1865,  the  defendants  furnished  the  plaintiff  with 
specifications  for  fitting  up  a  suit  of  offices  at  57  Broadway,  and  re- 
quested him  to  make  an  estimate  of  the  cost  of  doing  the  work. 

On  September  twentj'-eighth  the  plaintiff  left  his  estimate  with  the 
defendants,  and  they  were  to  consider  upon  it,  and  inform  the  plaintiff 
of  their  conclusions. 

On  the  same  day  the  defendants  made  a  change  in  their  specifications 
and  sent  a  cop3'  of  the  same,  so  changed,  to  the  plaintiff  for  his  assent 
under  his  estimate,  which  he  assented  to  by  signing  the  same  and 
returning  it  to  the  defendants. 

On  the  day  following  the  defendants'  book-keeper  wrote  the  plaintiff 

the  following  note  :  — 
I  New  York,  September  29th. 

I      ZJpo7i  an  nrjrpp/n^i^^  to  finish  the  fitting  up  of  offices  57  Broadway  in 
I  two  weeks  from  date,  you  can  begin  at  once. 

The  writer  will  call  again,  probably  between  five  and  six  this  p.  m. 
J  W.  H.  R., 

For  J.  W.  CoRLiEs  &  Co., 

32  Dey  Street. 

No  reply  to  this  note  was  ever  made  by  Ihe-^ekmatlff ;  and  on  the 
next  day  the_same  was  countermanded  by  a  second  nQte-irom  the 
defendants!  ~      " '  ^ 

Immediately  on  receipt  of  the  note  of  September  twentj'-ninth,  and 
before  the  countermand  was  forwarded,  the  plaintiff  commenced  a  per- 
formance b}-  the  purchase  of  lumber  and  beginning  work  thereon. 

And  after  receiving  the  countermand,  the  plaintiff  brought  this  action 
for  damages  for  a  breach  of  contract. 

The  court  charged  the  jury  as  follows  :  "  From  the  contents  of  this 
note  which  the  plaintiff  received,  was  it  his  duty  to  go  down  to  Dey 
Street  (meaning  to  give  notice  of  assent)  before  commencing  the 
work." 

"  In  my  opinion  it  was  not.  He  had  a  right  to  act  upon  the  note 
and  commence  the  job,  and  that  was  a  binding  contract  between  the 
parties. 


SECT.    I.]  WHITE   V.    COR  LIES.  135 

To  this  defendants  excepted. 

L.  Ilenr;/,  for  appellants. 

Mr.  Field,  for  respondent. 

FoLGER,  J.  We  do  not  think  that  the  jury  found,  or  that  the  testi- 
mony shows,  that  there  was  any  agreement  between  the  parties, 'before 
the  written  communication  of  the  defendants  of  September  thirtieth  was 
received  by  the  plaintiff.  'Ui^^  "'^^^  'J'^  ""^'  ^ake  an  agreement.  It 
was  a  proposition,  and  must  have  been  accepted  by  the  plaintiff  before 
either  party  was  bound,  in  contract,  to  the  other.  Jhe  only  qyeiI- 
action  which  is  plnjpied  ^^y  t^'P  p1a.intifF  as  indicatjno:  on_Mg  P^^'t  an, 
acceptance  of  tjigjog^,  was  the  purchase  of  the  stuff  necessar}'  forthe 
wnrji  nnd  commencing  work  as  wp  nndpfstand  the  testimony,  npnn 
t;hat  stuff. 

vVe  understand  the  rule  to  be,  that  yrhere  an  offer  is  made  by  one 
.party  if)  flnnilipr  vyhpix.  thev  are  not  together,  the  acceptance  of  it  by  _ 
that  otlier  mns1;,  he  manifested  by  some  appropriate  act.  It  does  not 
need  that  the  acceptance  shall  come  to  the  knowledge  of  the  one  mak- 
ing the  offer  before  he  shall  be  bound.  But  though  the  manifestation 
need  not  be  brought  to  his  knowledge  before  he  becomes  bound,  he  is 
not  bound  if  that  manifestation  is  not  put  in  a  proper  waj'  to  be  in  the 
usual  course  of  events  in  some  reasonable  time  communicated  to  him. 
Thus  a  letter  received  bj'  mail  containing  a  proposal,  may  be  answered 
by  letter  by  mail  containing  the  acceptance.  And  in  general,  as  soon 
as  the  answering  letter  is  mailed  the  contract  is  concluded.  Though 
one  party  does  not  know  of  the  acceptance,  the  manifestation  thereof  is 
put  in  the  proper  way  of  reaching  him. 

In  the  case  in  hand,  the  plaintiff  determined  to  accept.  But.A^en- 
<J;al  determination  not  indicated  bv  speech,  or  put  in  course  of  indica- 
tion by  act  to  the  othex-Party,  is  not  anacceptance  whiduy'^T  bjn^  ^^'^ 
other.  JNor  does  an  act  which,  in  itself  is  no  indication  of  an  accept- 
ance, become  such,  because  accompanied  b}-  an  unevinced  mental 
determination.  Where  the  act,  uninterpreted  by  concurrent  evidence  of 
the  mental  purpose  accompanying  it,  is  as  well  referable  to  one  state 
of  facts  as  another,  it  is  no  indication  to  the  other  party  of  an  accept- 
ance, and  does  not  operate  to  hold  him  to  his  offer. 

Conceding  that  the  testimon}'  shows  that  the  plaintiff  did  resolve  to 
accept  this  offer,  he  did  no  act  which  indicated  an  acceptance  of  it  to 
the  defendants.  He,  a  carpenter  and  builder,  purchased  stuff  for  the 
work.  But  it  was  stuff  as  fit  for  any  other  like  work.  He  began  work 
upon  the  stuff,  but  as  he  would  have  cfoiie"for  an}'  other  like  work. 
There  was  nothing  in  his  thought  formed  but  not  uttered,  or  in  his  acts, 
that  indicated  or  set  in  motion  an  indication  to  the  defendants  of  his 
acceptance  of  their  offer,  or  which  could  necessarih-  result  therein. 

But  the  charge  of  the  learned  judge  was  fairly  to  be  understood  bj' 
the  jury  as  laying  down  the  rule  to  them,  that  the  plaintiff  need  not 
indicate  to  the  defendants  his  acceptance  of  their  offer,  and  that  the 
purchase  of  stuff  and  working  on  it  after  receiving  the   note,    made   a 


136        GREAT   NORTHERN  RAILWAY   CO.   V.   WITHAM.      [CHAP.   I. 

binding  contract  between  the  parties.     In  this  we  think  the  learned 
judge  fell  into  error. 

The  judgment  appealed  from   must  be  reversed,  and  a  new   trial 
ordered,  with  costs  to  abide  the  event  of  the  action. 

All  concur  but  Allen,  J.,  not  voting. 

Judgment  reversed  and  new  trial  ordered};/ 


THE  GREAT  NORTHERN  RAILWAY  COMPANY  v.  WITHAM. 

In  the  Common  Pleas,  November  6,  1783. 

[Reported  in  Laio  Reports,  9  Common  Pleas,  16.] 

The  cause  was  tried  before  Brett,  J.,  at  the  sittings  at  Westminster 
after  the  last  term.  The  facts  were  as  follows:  In  October,  1871,  tlie 
plaintiffs  advertised  for  tenders  for  the  supply  of  goods  (amongst  other 
things  iron)  to  be  delivered  at  their  station  at  Doncaster,  according  to 
a  certain  specification.      The  defendant  sent  in  a  tender,  as  follows  :  — 

I,  the  undersigned,  hereby  undertake  to  supply  the  Great  Northern 
Railway-  Company,  for  twelve  months  from  the  1st  of  November,  1871, 
to  31st  of  October,  1872,  with  such  quantities  of  each  or  an}'  of  the 
several  articles  named  in  the  attached  specification  as  the  compan3"'s 
storekeeper  may  order  from  time  to  time,  at  the  price  set  opposite  each 
article  respectively,  and  agree  to  abide  by  the  conditions  stated  on  the 
other  side. 

(Signed)  Samuel  With  am. 

The  company's  officer  wrote  in  reply  as  follows :  — 

Mr.  /S.  Witham: 

Sir,  —  I  am  instructed  to  inform  3'ou  that  m}'  directors  have  accepted 
your  tender,  dated,  &c.,  to  suppl}-  this  company  at  Doncaster  station 

^  There  are  many  cases  where  an  acceptance,  so  called,  did  not  complete  the  con- 
tract, because  it  imposed  a  new  condition  or  slightly  but  materially  varied  the  terms  of 
the  offer.  See  Honeyman  v  Marryat,  6  H.  L.  C.  1 1 2 ;  English,  &c.,  Credit  Co.  v.  Ar- 
duin,  L.  R.  5  H.  L.  64  ;  Appleby  v.  Johnson,  L.  R.  9  C.  P.  158  ;  Stanley  v.  Dowdes- 
well,  L.  R.  10  C.  P.  102  ;  Crossley  v.  Maycock,  E.  R.  18  Eq.  180  ;  Jones  v.  Daniel, 
[1894]  2  Ch.  332  ;  Lloyd  v.  Nowell,  [189.5]  "2  Ch.  744  ;  Ortman  v.  Weaver,  11  Fed.Rep. 
358 ;  Martin  v.  Northwestern  Fuel  Co.,  22  Fed.  Rep.  596 ;  Coffin  v.  Portland,  43  Fed. 
Rep.  411  ;  James  v.  Darby,  100  Fed.  Rep  224  (C  C.  A.) ;  Robinson  v.  Weller,  81  Ga. 
704;  Corcoran  v.  White,  117  111.  118;  Middaugh  v.  Stough,  161  HI.  312;  Stagg  v. 
Comptou,  81  Ind.  171 ;  Siebold  v.  Davis,  67  la.  560  ;  Gilbert  v.  Baxter,  71  la.  327; 
Howard  v.  Industrial  School,  78  Me.  230  ;  Putnam  v.  Grace,  161  Mass.  237  ;  Falls  Wire 
Mfg.  Co.  V.  Broderick,  12  Mo.  App.  379 ;  Commercial  Telegram  Co.  r.  Smith,  47  Hun, 
494  ;  Olds  v.  East  Tenn.  Stone  Co.  (Tenn.),  48  S.  W.  Rep.  333  ;  North  Texas  Building 
Co.  I'.  Coleman  (Tex.  Civ.  App.),  58  S.  W.  Rep.  1044 ;  Virginia  Hot  Springs  Co.  v. 
Harrison,  93  Va.  569 ;  Baker  v.  Holt,  56  Wis.  100.  And  see  7  Am.  &  Eng.  Encyc.  of 
Law,  132.  Compare:  Hussey  v.  Home  Payne,  4  App.  Cas.  311;  Smith  v.  Webster, 
3  Ch.  D.  49 ;  North  v.  Percival,  [1898]  2  Ch.  128. 


SECT.   I.]      GREAT   NORTHERN   RAILWAY    CO.    V.   WITH  AM.  137 

any  quantity  they  may  order  during  the  period  ending  31st  of  October, 
1872,  of  the  descriptions  of  iron  mentioned  on  the  inclosed  list,  at  the 
prices  specifif'd  therein.  The  terms  of  the  contract  must  be  strictly 
adhered  to.  Requesting  an  acknowledgment  of  the  receipt  of  this 
letter, 

(Signed)  S.  Fitch,  Assistant  Secretary. 

To  this  the  defendant  replied  :  — 

I  beg  to  own  receipt  of  your  favor  of  20th  instant,  accepting  my 
tender  for  bars,  for  which  I  am  obliged.  Your  specifications  shall 
receive  my  best  attention. 

S.  "With AM. 

Several  orders  for  iron  were  given  by  the  company,  which  were 
from  time  to  time  duly  executed  by  the  defendant ;  but  ultimate!}'  the 
defendant  refused  to  supply  any  more,  whereupon  this  action  was 
brought. 

A  verdict  having  been  found  for  the  plaintiffs,  — 

Diabv  Seymour,  Q.  C,  moved  to  enter  a  nonsuit,  on  the  ground  that 
tffe  contract  was  void^f*^'*  wnnt,  nf  mi^tngi-ity  He  contended  that,  as" 
the  company  did  not  bind  themselves  to  take  any  iron  whatever  from 
the  defendant,  his  promise  to  supply  them  with  iron  was  a  promise 
without  consideration.  He  cited  Lees  v.  Whitcomb,  5  Bing.  34  ;  Burton 
V.  Great  Northern  Railway  Co.,  9  Ex.  507,  23  L.  J.  (Ex.)  184;  Sykes 
V.  Dixon,  9  Ad.  &  E.  693  ;  and  Bealey  v.  Stuart,  7  H.  &  N.  753,  31 
L.  J.  (Ex.)  281.  ^  Cifr.  adv.  vult. 

Brett,  J.  The  company  advertised  for  tenders  for  the  suppl}'  of 
stores,  such  as  thej'  might  think  fit  to  order,  for  one  j'ear.  The  defend- 
ant made  a  tender  offering  to  supply  them  for  that  period  at  certain 
fixed  prices  ;  and  the  compan}'  accepted  his  tender.  Ifjthere  were  no 
jother  objection,  the  contract  between  the  parties  would  be  found  in_ 
the  tender  and  the  letter  accepting  it.  This  action  is  brought  for  the 
defendant's  refusal  to  deliver  goods  ordered  b}-  the  companj' ;  and  the 
objection  to  the  plaintitTs  right  to  recover  is,  that  the  contract  is  uni- 
lateral. I  do  not,  however,  undei'stand  what  objection  that  is  to  a  con- 
tract. Many  contracts  are  obnoxious  to  the  same  complaint.  If  I 
say  to  another,  "  If  you  will  go  to  York,  I  will  give  you  100/.,"  that  is 
in  a  certain  sense  a  unilateral  contract.  He  has  not  promised  to  go 
to  York  ;  but  if  he  goes  it  cannot  be  doubted  that  he  will  be  entitled 
to  receive  the  lOOZ.  His  going  to  York  at  my  request  is  a  sufficient 
consideration  for  my  promise.  So,  if  one  says  to  another,  '•'•  W  you 
will  give  me  an  order  for  iron,  or  other  goods,  I  will  supply  it  at  a 
given  price  ; ''  if  the  order  is  given,  there  is  a  complete  contract  which 
the  seller  is  bound  to  perform.  There  is  in  such  a  case  ample  consid- 
eration for  the  promise.^     So,  here,  the  company  having  given  the  de- 

1  "  It  would  he  an  ordinary  case  of  a  unilateral  contract  growing  out  of  an  offer  of 
one  party  to  do  somethiug  if  the  other  will  do  or  refrain  from  doing  something  else. 


138  CHICAGO,    ETC.,   RAILWAY   CO.   V.   DANE,        [CHAP.   I. 

fendant  an  order  at  his  request,  his  acceptance  of  the  order  would  bind 
theni.  If  an}-  authorit}-  could  have  been  found  to  sustain  Mr.  Seymour's 
contention,  I  should  have  considered  that  a  rule  ought  to  be  granted. 
But  none  has  been  cited.  Burton  v.  Great  Northern  Railway  Conipan}', 
9  Ex.  507,  23  L.  J.  (Ex.)  184,  is  not  at  all  to  the  purpose.  This  is 
matter  of  every  day's  practice  ;  and  I  think  it  would  be  wrong  to  coun- 
tenance the  notion  that  a  man  who  tenders  for  the  supply  of  goods  in 
this  way  is  not  bound  to  deliver  them  when  an  order  is  given.  I  agree 
that  this  judgment  does  not  decide  the  question  whether  the  defendant 
might  have  absolved  himself  from  the  further  performance  of  the 
contract  by  giving  notice.^ 

Grove,  J.     I  am  of  the  same  opinion,  and  have  nothing  to  add. 

Jiule  refused.^ 


THE  CHICAGO  AND  GREAT  EASTERN  RAILWAY  COM- 
PANY, Appellant,  v.  FRANCIS  B.  DANE  and  Others, 
Respondents. 

New  Yokk  Court  of  Appeals,  December  13-20,  1870. 

[Reported  in  43  New  York,  240.] 

This  is  an  appeal  from  a  judgment  of  the  General  Term  of  the 
Supreme  Court  in  the  first  judicial  district,  affirming  a  judgment  for 
the  defendant  entered  upon  the  report  of  a  referee. 

This  action  was  brought  to  recover  damages  on  an  alleged  contract  of 
the  defendant  to  carry  and  transport  a  quantit}'  of  railroad  iron  from 
New  York  to  Chicago  for  the  plaintiffs.  The  onh*  evidence  of  the  con- 
tract were  the  letters  quoted  in  the  opinion  of  the  court.  The  defendant 
insisted  that  the  agreement  was  invalid  for  want  of  the  proper  U.  S. 
internal  revenue  stamp  affixed  at  the  time  it  was  made.  But  the 
referee  overruled  the  objection,  holding  that  it  was  sufficient  under  sec- 
tion 173  of  the  Revenue  Act  of  June  30,  1864,  to  stamp  the  instru- 
ment on  its  production  in  court.  This  point  was  not  passed  on  in  this 
court. 

l^itus  and  Westervelt,  for  the  appellant. 

JI.  W.  Johnson^  for  the  respondents. 

Grovek,  J.  Whether  the  letter  of  the  defendants  to  plaintiff,  nnrT 
tjie_  answer  of  p)ain^ff  thereto  (leaving  the  question  of  revenue  stamps 

If  the  party  to  whom  such  an  offer  is  made  acts  upon  it  in  the  manner  contemplated, 
either  to  the  advantage  of  the  offerer  or  to  his  own  disadvantage,  such  action  makes 
the  contract  complete,  and  notice  of  the  acceptance  of  the  offer  is  unnecessary.  Lent 
\j.  Padelford,  10  Mass.  230;  Train  v.  Gold,  5  Tick.  380;  Brogden  v.  Metropolitan  Rail- 
way, 2  App.  Cas.  666,  691  ;  Weaver  v.  Wood,  9  Pa.  220 ;  Patton  v.  Hassinger,  69  Pa. 
311."     Knowlton,  J.,  in  First  Nat.  Bank  v.  Watkins,  154  Mass.  385,  387. 

1  See  Queen  v.  Uemers,  [1900]  A.  C.  103;  Ford  v.  Newth,  [1901]  1  K.  B.  683; 
Attorney-General  f.  Stewards,  18  T.  L.  R.  131. 

2  A  statement  of  the  pleadings  and  the  concurring  opinion  of  Keating,  J.,  are 
omitted. 


SECT.    I.]  CHICAGO,    ETC.,   IIAILWAY   CO.    V.   DANE.  139 

out  of  view),  proved  a  legal  contract  for  the_trj:^nspnff.ntinn  nf_Xron  by^ 
the  defendants  for _tlie^  plaintiff  from  New  York  to  Chicago  upon  the 
vtei'ms  therein  specified,  depends  upon  the  question  whetHer~nie"pIaintitt 
becaraethereh^-  bound  to  furnish  an}'  iron  to  the  defendants  for  such 
transportation,  as  there  was^no  pretence  of  any  consideration  for  the" 
promise"  of  the  defendants  to   transport  the  iron,  except  the  mutual 
promise  of  the  plaintiff   to  furnish  it  for    that  pur[jose,   and   to  pa\" 
Uie^specified  price  for  the  service.     Unless,  therefore,  there  was  a  valid"* 
undertaking  by  the^plaintitf  so  to  furnish  the  iron,  the  promise  of  the 
defendants  was  a  mei-e  nude  pact,  for  the  breach  of  which  no  action  can 
be  maintained.     The  material  part  of  the  defendants'  letter  affecting 
this  question  is  as  follows  :   "•  We  hegel^' agrp^  to  yQc^ivf;  uj  this  j\cyrt 
(NewYOTk)^eiUaer_.ft;om^j;^^ 

CanaT^nd  rajTortbelakes.  for  and  on  account  of  the  Chicago  and  Greats 
^Eastern  Railway  Cornpflny^  not  PYfPPflincT  six  thousand  tons  gmsiji 
(2,240  lbs.)  in  and  during  the  months  of  April,  Ma}-,  June,  JulVj_an(j__ 
August,  1864,  upon  the  "terms  and  for  the  price  hereinafter  specififiiLI' 
This  letteFwas  forwarded  by  the  defendants  LotBe^aintiff  April  15, 
1864.  On  the  16th  of  April,  the  plaintiff  answered  this  letter,  the 
material  part  of  which  was  as  follows:  '■''  In  behalf  of  this  company  I 
assent  to  your  agreement,  and  will  be  bouadJby.  its  teJLUS-"  We  have 
seen  that  the  inquiry  is,  whether  this  bound  the  plaintiff  to  furnish  any 
iron  for  transportation.  It  is  manifest  that  the  word  "  agree"  in  the 
letter  of  the  defendants  was  used  as  synonymous  with  the  word  "offer," 
and  that  the  letter  was  a  mere  proposition  to  the  plaintiff  for  a  contract 
to  transport  for  it  any  quantity  of  iron  upon  the  terms  specified,  not 
exceeding  6,000  tons,  and  that  it  was  so  understood  by  the  plaintiff. 
Tlie  plaintiff  was  at  libert}'  to  accept  this  proposition  for  an}'  specified 
quantity  not  beyond  that  limited  ;  and  had  it  done  so,  a  contract  mutu- 
ally obligatory  would  have  resulted  therefrom,  for  the  breach  of  which 
by  either  party  the  other  could  have  maintained  an  action  for  tlie  recov- 
ery of  the  damages  thereby  sustained.  This  mutual  obligation  of  the 
parties  to  perform  the  contract  would  have  constituted  a  consideration 
for  the  promise  of  each.  But  the  plaintiff  did  not  so  accept.  Upon  the 
receipt  of  the  defendants'  offer  to  transport  not  to  exceed  6,000  tons 
upon  the  terras  specified,  it  merely  accepted  such  offer,  and  agreed 
to  be  bound  by  its  terms.  This  amounted  to  nothing  more  than 
the  acceptance  of  an  option  by  the  plaintiff  for  the  transportation  of 
such  quantity  of  iron  by  the  defendants  as  it  chose  ;  and  had  there 
been  a  consideration  given  to  the  defendants  for  such  option,  the 
defendants  would  liave  been  bound  to  transport  for  the  plaintiff  such 
iron  -as  it  required  within  the  time  and  quantity  specified,  the  plaintiff 
having  its  election  not  to  require  the  transportation  of  any.  But  there 
was  no  consideration  received  by  the  defendants  for  giving  any  such 
option  to  the  plaintiff.  There  being  no  consideration  for  the  promise 
of  the  defendants,  except  this  acceptance  by  the  plaintiff,  and  that  not 
binding  it  to  furnish  an^'  iron  for  transportation  unless  it  chose,  it  fol- 


140  ROYAL   INS.    CO.    V.    BEATTT.  [CHAP.    I. 

lows  that  there  was  no  consideration  for  any  promise  of  the  defendants, 
and  that  the  breach  of  such  promises  furnishes  no  foundation  for  an 
action.  The  counsel  for  the  plaintiff  insists  that  the  contract  may  be 
upheld  for  the  reason  that  at  the  time  the  letters  were  written  tlie 
defendants  were  engaged  in  transporting  iron  for  the  plaintiff.  But 
this  had  no  connection  with  the  letters  any  more  than  if  the  defendants 
were  at  the  time  employed  in  aii}'  other  service  for  the  plaintiff.  Nor 
does  the  fact  that  the  defendants,  after  the  letters  were  written,  trans- 
ported iron  for  the  plaintiff  at  all  aid  in  upholding  the  contract.  This' 
did  not  oblige  the  plaintiff  to  furnish  any  additional  quantity,  and  con- 
sequently constituted  no  consideration  for  a  promise  to  transport  any 
such.  The  counsel  for  the  appellant  further  insists  that  the  letter  of 
defendant  was  a  continuing  offer,  and  that  the  request  of  the  plaintiff,  in 
August,  to  receive  and  transport  a  specified  quantity  of  iron  was  an  ac- 
ceptance of  such  offer,  and  tliat  the  promises  then  became  mutually 
obligator}',  if  not  so  before.  This  position  cannot  be  maintained.  Jlpon 
receipt  of  the  defendants'  letter,  the  plaintiff  was  bound  to  accept  in  a 
reasonable  time  and  give  notice  thereof,  or  the  defendant  was  no  longer 
bound  b}'  the  offer.  The  judgment  appealed  from  must  be  affirmed 
with  costs. 

All  the  judges  concurring,  except  Allen,  J.,  who,  having  been  of 
counsel,  did  not  sit.  Judgment  affirmed}        ' 

y 

THE  ROYAL  INSURANCE  COMPANY  v.  WILLIAM  BEATTY. 

Pennsylvania  Supreme  Court,  January  16 — February  20,  1888. 

[Reported  in  119  Pennsylvania  State,  6.] 

An  action  of  covenant,  afterward  changed  to  assumpsit,  was  brought 
(when,  not  shown)  b}'  William  Beatty  against  the  Ro3'al  Insurance 
Company  of  Liverpool,  to  recover  upon  two  policies  of  insurance,  each 
for  $3,000  and  for  the  term  of  one  year,  expiring  at  the  same  time  on 
January  6,  1886. 

At  the  trial  on  June  11,  1887,  the  evidence,  more  fully  appearing  in 
the  opinion  of  this  court,  was  to  the  effect  that  on  the  day  before  the 
term  of  the  policies  expired,  the  clerk  of  an  insurance  broker  who  had 
charge  of  them  was  sent  to  the  defendant  company's  office  to  "  bind" 
them  ;  that  is,  to  have  it  agreed  upon  that  they  should  be  deemed  in 
force  till  it  was  ascertained  whether  there  would  be  a  change  in  the 
rates,  and  then  the  insured  would  determine  whether  to  drop  the  poli- 
cies or  renew  them.  The  clerk  had  a  memorandum  of  other  policies  for 
other  people  with  him,  to  which  it  was  desired  that  the  night  clause  — 
the  privilege  of  running  at  night  —  be  extended,  and  asked  the  renewal 
clerk  of  the  insurance  company  to  "bind"  the  policies  in  suit  and  to 
have  the  night  clause  extended  to  the  others.  The  insurance  clerk  dis- 
cussed with  the  bi'oker's  clerk  the  subject  of  the  night  clause  in  the 
1  See  Thayer  v.  Burchard,  99  Mass.  508. 


SECT.   I.]  ROYAL  INS.   CO.   V.    BEATTY.  141 

other  policies,  but  said  nothing  and  did  nothing  with  reference  to 
"  binding  "  the  policies  in  suit.  The  broker's  clerk  assumed  or  believed 
he  had  assented,  and  so  reported  to  his  own  office,  where  memoranda 
were  made  upon  the  broker's  books  indicating  that  the  policies  were 
renewed.  The  loss  occurred  on  January  10th  following.  The  defend- 
ant company's  renewal  clerk  testified  that  he  did  not  hear  the  request 
to  "  bind  "  the  policies  in  suit,  and  the  policies  had  not  been  renewed. 

At  the  close  of  the  testimony,  the  defendant  requested  the  court  to 
charge  the  jur}',  — 

1.  That  there  was  no  evidence  of  an  acceptance  by  the  defendant  of 
the  offer  to  renew  the  plaintiff's  policies,  and  the  verdict  of  the  jury 
must  be  for  the  defendant. 

The  court,  Hare,  P.  J.,  refused  to  affirm  this  point,  and  submitted 
the  cause  upon  the  evidence,  the  charge  not  appearing  upon  the  paper 
books. 

The  verdict  of  the  jur}'  was  for  the  plaintiff,  amount  not  shown,  and 
judgment  being  entered  thereon,  the  defendant  took  this  writ,  assigning 
as  error,  inter  alia^  the  refusal  to  affirm  the  point  submitted  by  the 
defendant. 

Mr.  R.  C  McMurtrie^  for  the  plaintiff  in  error. 

Mr.  George  H.  Earle,  Jr.  (with  him  Mr.  Richard  P.  White).,  for 
the  defendant  in  error. 

j\Ir.  Justice  Green.  We  find  ourselves  unable  to  discover  any  evi- 
dence of  a  contractual  relation  between  the  parties  to  this  litigation. 
The  contract  alleged  to  exist  ^i^  ipt  founded  upon  an}-  writing,  nor 
upon  an}-  words,  nor  upon  an}-  am  done  by  the  defendant.  It  was 
founded  alone  upon  silence.  While  it  must  be  conceded  that  circum- 
stances may  exist  which  will  impose  a  contractual  obligation  by  mere 
silence,  yet  it  must  he  admitted  that  such  circumstances  are  exceptional 
in  their  character  and  of  extremely  rare  occurrence.  We  have  not  been 
furnished  with  a  perfect  instance  of  the  kind  by  the  counsel  on  either 
side  of  the  present  case.  Those  cited  for  defendant  in  error  had  some 
other  element  in  them  than  mere  silence,  which  contributed  to  the 
establishment  of  the  relation. 

But  in  any  point  of  view  it  is  difficult  to  understand  how  a  legal 
liability  can  arise  out  of  the  mere  silence  of  the  party  sought  to  be 
affected,  unless  he  was  subject  to  a  duty  of  speech,  which  was  neglected 
to  the  harm  of  the  other  party.  If  there  was  no  duty  of  speech  there 
could  be  no  harmful  omission  arising  from  mere  silence.  Take  the 
present  case  as  an  illustration.  The  alleged  contract  was  a  contract  of 
fire  insurance.  The  plaintiff  held  two  poUcies  against  the  defendant, 
but  they  had  expired  before  the  loss  occurred,  and  had  not  been  for- 
mally renewed.  At  the  time  of  the  fire  the  plaintiff  held  no  policy 
against  the  defendant.  But  he  claims  that  the  defendant  agreed  to  con- 
tinue the  operation  of  the  expired  policies  by  what  he  calls  "  binding" 
them.  How  does  he  prove  this?  He  calls  a  clerk,  who  took  the  two 
policies  in  question,  along  with  other  policies  of  another  person,  to  the 


142  ROYAL   INS.   CO.   V.   BEATTT.  [CHAP,   L 

agent  of  the  defendant  to  have  thera  renewed,  and  this  is  the  account 
he  gives  of  what  took  place  :  "  The  Ro^al  Compan}'  had  some  policies 
to  be  renewed  and  I  went  in  and  bound  them.  Q.  State  what  was  said 
and  done.  A.  I  went  into  the  office  of  the  Ro^al  Company  and  asked 
them  to  bind  the  two  policies  of  Mr.  Beatt}'  expiring  to-morrow.  The 
court:  Who  were  the  policies  for?  A.  For  Mr.  Beatt}'.  The  court: 
That  is  j'our  name,  is  it  not?  A.  Yes,  sir.  These  were  the  policies  in 
question.  I  renewed  the  policies  of  Mr.  Priestly  up  to  the  1st  of  April. 
There  was  nothing  more  said  about  the  Beatty  policies  at  that  time. 
The  court:  What  did  they  say?  A.  They  did  not  say  anything,  but  I 
suppose  that  they  went  to  their  books  to  do  it.  They  commenced  to 
talk  about  the  night  privilege,  and  that  was  tlie  only  subject  discussed." 
In  his  further  examination  he  was  asked  :  "  §.  Did  yo\i  sa}"  anything 
about  those  policies  (Robert  Beatty's)  at  that  time?  A.  No,  sir;  I 
only  spoke  of  the  two  policies  for  William  Beatt}'.  Q.  What  did  you 
sa}-  about  them?  A.  I  went  in  and  said,  'Mr.  Skinner,  will  3'ou  renew 
the  Beatty  policies  and  the  night  privilege  for  Mr.  Priestly  ? '  and  that 
ended  it.  Q.  Were  the  other  companies  bound  in  the  same  way? 
A.  Yes,  sir ;  and  I  asked  the  Royal  Company'  to  bind  Mr.  Beatty." 

The  foregoing  is  the  whole  of  the  testimony  for  the  plaintiff  as  to 
what  was  actuall}'  said  at  the  time  when  it  is  alleged  the  policies  were 
bound.  It  will  be  perceived  that  all  that  the  witness  sa3's  is,  that  he 
asked  the  defendant's  agent  to  bind  the  two  pohcies,  as  he  states  at 
first,  or  to  renew  them,  as  he  sa3-s  last.  He  received  no  answer,  noth- 
ing was  said,  nor  was  anything  done.  How  is  it  possible  to  make  a 
contract  out  of  this?  It  is  not  as  if  one  declares  or  states  a  fact  in  the 
presence  of  another  and  the  other  is  silent.  If  the  declaration  imposed 
a  duty  of  speech  on  peril  of  an  inference  from  silence,  the  fact  of  silence 
might  justify  the  inference  of  an  admission  of  the  truth  of  the  declared 
fact.  It  would  then  be  onl\'  a  question  of  hearing,  which  would  be 
chiefl}'  if  not  entirely  for  the  jur}'.  But  here  the  utterance  was  a  ques- 
tion and  not  an  assertion,  and  there  was  no  answer  to  the  question. 
Instead  of  silence  being  evidence  of  an  agreement  to  do  the  thing  re- 
quested, it  is  evidence,  either  that  the  question  was  not  heard,  or  that 
it  was  not  intended  to  comply  with  the  request.  Especially  is  this  the 
case  when,  if  a  compliance  was  intended,  the  request  would  have  been 
followed  b}-  an  actual  doing  of  the  thing  requested.  But  this  was  not 
done :  how  then  can  it  be  said  it  was  agreed  to  be  done  ?  There  is  lit- 
erally nothinsr  upon  which  to  base  the  inference  of  an  agreement  upon 
such  a  state  of  facts.  Hence  the  matter  is  for  the  court  and  not  for  the 
jurj' ;  for  if  there  ma}-  not  be  an  inference  of  the  controverted  fact  the 
jury  must  not  be  permitted  to  make  it. 

What  has  thus  far  been  said  relates  only  to  the  effect  of  the  non- 
action of  the  defendant,  either  in  responding  or  in  doing  the  thing 
requested.  There  i-eraains  for  consideration  the  effect  of  the  plaintiff's 
non-action.  When  he  asked  the  question  whether  defendant  would 
bind  or  renew  the  policies  and  obtained  no  answer,  what  was  his  duty  ? 


SECT.  I.]         KOYAL  INS.  CO.  V.    BEATTY.  143 

Undoubtedly  to  repeat  his  question  until  he  obtained  an  answer.  For 
his  request  was  that  the  defendant  should  make  a  contract  with  hira, 
and  the  defendant  says  nothing.  Certainly  such  silence  is  not  an  assent 
in  any  sense.  There  should  be  something  done,  or  else  something  said 
before  it  is  possible  to  assume  that  a  contract  was  established.  There 
being  nothing  done  and  nothing  said,  there  is  no  footing  upon  which  an 
inference  of  an  agreement  can  stand.  But  what  was  the  position  of  the 
plaintiff?  He  had  asked  the  defendant  to  make  a  contract  with  him, 
and  the  defendant  had  not  agreed  to  do  so ;  he  had  not  even  answered 
the  question  whether  he  would  do  so.  The  plaintiff  knew  he  had  ob- 
tained no  answer,  but  he  does  not  repeat  the  question  ;  he,  too,  is  silent 
thereafter,  and  he  does  not  get  the  thing  done  which  he  asks  to  be 
done.  Assuredly  it  was  his  duty  to  speak  again,  and  to  take  further 
action  if  he  really  intended  to  obtain  the  defendant's  assent.  For  what 
he  wanted  was  something  affirmative  and  positive,  and  without  it  he 
has  no  status.  But  he  desists,  and  does  and  says  nothing  further. 
And  so  it  is  that  the  whole  of  the  plaintiff's  case  is  an  unanswered 
request  to  the  defendant  to  make  a  contract  with  the  plaintiff,  and  no 
further  attempt  by  the  plaintiff  to  obtain  an  answer,  and  no  actual  con- 
tract made.  Out  of  such  facts  it  is  not  possible  to  make  a  legal  infer- 
ence of  a  contract. 

The  other  facts  proved  and  offered  to  be  proved,  but  rejected  im- 
properl}-,  as  we  think,  and  supposed  by  each  to  be  consistent  with  his 
theory-,  tend  much  more  strongly  in  fav^or  of  the  defendant's  theory  than 
of  the  plaintiff's.  It  is  not  necessaiy  to  discuss  them,  since  the  other 
views  we  have  expresssed  are  fatal  to  the  plaintiff's  claim.  Nor  do  I 
concede  that  ifdefendant^  heard  plaintiff's  j;equest^nd  made  no  answer, 
an  inference  of  assent  should  be  made.  For  the  hearing  of  a  request," 
and  not  answering  it  is  as  consistent,  indeed  more  consistent,  with  a 
dissent  than  an  assent.  If  one  is  asked  for  alms  on ' tSe^'streef ,~aB(1  " 
hears  the  request,  but  makes  no  answer,  it  certainly  cannot  be  inferred 
that  he  intends  to  give  them.  In  the  present  case  there  is  no  evidence 
that  defendant  heard  the  plaintiff's  request,  and  without  hearing  there 
was,  of  course,  no  duty  of  speech. 

Judgment  reversed} 

1  Titcomb  v.  United  States.  14  Ct.  CI.  263  ;  Rutledge  v.  Greenwood,  2  Desaus.  38'. 
:01 ;  Raysor  v.  Berkeley  Co.,  26  S.  C.  610,  ace. 


144  WHEELEK   V.    KLAHOLT.  [CHAP.   I. 


JOHN   F.    WHEELER  and   Another  v.  A.   W.   KLAHOLT 
AND   Another. 

Supreme  Judicial  Court  of  Massachusetts,  January  7- 
March  1,  1901. 

[Reported  in  178  Massachusetts,  141.] 

Holmes,  C.  J.  This  is  an  action  for  the  price  of  one  hundred  and 
seventy-four  pairs  of  shoes,  and  the  question  raised  by  the  defend- 
ants' exceptions  is  whether  there  was  any  evidence,  at  the  trial,  of  a 
purchase  by  the  defendants.^ 

The  evidence  of  the  sale  was  this.  The  shoes  had  been  sent  to  the 
defendants  on  the  understanding  that  a  bargain  had  been  made.  It 
turned  out  that  the  parties  disagreed,  and  if  any  contract  bad  been 
made  it  was  repudiated  by  them  both.  Then,  on  September  11,  1899, 
the  plaintiffs  wrote  to  the  defendants  that  they  had  written  to  their 
agent,  Young,  to  inform  the  defendants  that  the  latter  might  keep  the 
goods  "at  the  price  you  offer  if  you  send  us  net  spot  cash  at  once. 
If  you  cannot  send  us  cash  draft  by  return  mail,  please  return  the 
goods  to  us  immediately  via  "Wabash  &  Fitchburg  Railroad,  other- 
wise they  will  go  through  New  York  City  and  it  would  take  three  or 
four  weeks  to  get  them."  On  September  15,  the  defendants  enclosed 
a  draft  for  the  price  less  four  per  cent,  which  they  said  was  the 
proposition  made  by  Young.  On  Sepember  18  the  plaintiffs  replied, 
returning  the  draft,  saying  that  there  was  no  deduction  of  four  per 
cent,  and  adding,  "if  not  satisfactory  please  return  the  goods  at 
once  by  freight  via  Wabash  &  Fitchburg  Railroad."  This  letter 
was  received  by  the  defendants  on  or  before  September  20,  but  the 
plaintiffs  heard  nothing  more  until  October  25,  when  they  were  noti- 
fied by  the  railroad  company  that  the  goods  were  in  Boston. 

It  should  be  added  that  when  the  goods  were  sent  to  the  defendants 
they  were  in  good  condition,  new,  fresh,  and  well  packed,  and  that 
when  the  plaintiffs  opened  the  returned  cases  their  contents  were 
more  or  less  defaced  and  some  pairs  of  shoes  were  gone.  It  fairly 
might  be  inferred  that  the  cases  had  been  opened  and  the  contents 
tumbled  about  by  the  defendants,  although  whether  before  or  after 
the  plaintiffs'  final  offer  perhaps  would  be  little  more  than  a  guess. 

Both  parties  invoke  Hobbs  v.  Massasoit  Whip  Co.,  158  Mass.  194, 
the  defendants  for  the  suggestion  on  p.  197  that  a  stranger  by  send- 
ing goods  to  another  cannot  impose  a  duty  of  notification  upon  him 
at  the  risk  of  finding  himself  a  purchaser  against  his  own  will.  We  are 
of  opinion  that  this  proposition  gives  the  defendants  no  help.  The 
parties  were  not  strangers  to  each  other.  The  goods  had  not  been 
foisted  upon  the  defendants,  but  were  in  their  custody  presumably 

1  A  part  of  the  opinion  relating  to  a  question  of  practice  is  omitted. 


SECT.   I.]  PKESCOTT   V.   JOKES.  146 

by  their  previous  assent,  at  all  events  by  their  assent  implied  by 
their  later  conduct.  The  relations  between  the  parties  were  so  far 
similar  to  those  in  the  case  cited,  that  if  the  plaintiffs'  offer  had 
been  simply  to  let  the  defendants  have  the  shoes  at  the  price  named, 
with  an  alternative  request  to  send  them  back  at  once,  as  in  their 
letters,  the  decision  would  have  applied,  and  a  silent  retention  of  the 
shoes  for  an  unreasonable  time  would  have  been  an  acceptance  of  the 
plaintiffs'  terms,  or,  at  least  would  have  warranted  a  finding  that  it 
was.     See  also  Bohn  Manuf.  Co.  v.  Sawyer,  169  Mass.  477. 

The  defendants  seek  to  escape  the  effect  of  the  foregoing  principle, 
if  held  applicable,  on  the  ground  of  the  terms  offered  by  the  plaintiffs. 
They  say  that  those  terms  made  it  impossible  to  accept  the  plaintiffs' 
offer,  or  to  give  the  plaintiffs  any  reasonable  ground  for  understand- 
ing that  their  offer  was  accepted,  otherwise  than  by  promptly  for- 
warding the  cash.  They  say  that  Avhatever  other  liabilities  they  may 
have  incurred  they  could  not  have  purported  to  accept  an  offer  to  sell 
for  cash  on  the  spot  by  simply  keeping  the  goods.  But  this  argument 
appears  to  us  to  take  one  half  of  the  plaintiffs'  proposition  with 
excessive  nicety,  and  to  ignore  the  alternative.  Probably  the  offer 
could  have  been  accepted  and  the  bargain  have  been  made  complete 
before  sending  on  the  cash.  At  all  events  we  must  not  forget  the 
alternative,  which  was  the  immediate  return  of  the  goods. 

The  evidence  warranted  a  finding  that  the  defendants  did  not  return 
the  goods  immediately  or  within  a  reasonable  time,  although  subject 
to  a  duty  in  regard  to  them.  The  case  does  not  stand  as  a  simple 
^ffer^  to  sell  for  cash  received  in  silence,  but  as  an  alternative  offer 
and  demand  to  and  upon  one  who  was  subject  to  a  duty  to  retura  the 
^oods,  allowing  him  either  to  buy  for  cash  or  to  return  the  shoes  at 
once,  followed  by  a  failure  on  his  part  to  do  anything.  Under  such 
circumstances  a  jury  would  be  warranted  in  finding  that  a  neglect  of 
the  duty  to  return  imported  an  acceptance  of  the  alternative  offer  to 
sell,  although  coupled  with  a  failure  to  show  that  promptness  on 
which  the  plamtrffs^had  a  right  to  insist  if  they  saw  fit,  but  which 
they  also  were  at  liberty  to  waive.  Exceptions  overruled. 


PRESCOTT  V.  JONES,  et  al. 
New  Hampshire  Supreme  Court,  June,   1898. 

[Reported  in  69  New  Hampshire,  305.] 

Assumpsit.  The  declaration  alleged,  in  substance,  that  the  de- 
fendants, as  insurance  agents,  had  insured  the  plaintiff's  buildings 
in  the  Manchester  Fire  Insurance  Company  until  February  1,  1897; 
that  on  January  23,  1897,  they  notified  him  that  they  would  renew 
the  policy  and  insure  his  buildings  for  a  further  term  of  one  year 

VOL.     I. 10 


146  PRESCOTT   V.   JONES.  [CHAP.    T. 

from  Febrnarj'  1,  1897,  in  the  sum  of  $500,  unless  notified  to  the 
contrary  by  him;  that  he,  relying  on  the  promise  to  insure  unless 
notified  to  the  contrary,  and  believing,  as  he  had  a  right  to  believe, 
that  the  buildings  would  be  insured  by  the  defendants  for  one  year 
from  February  1,  1897,  gave  no  notice  to  them  to  insure  or  not  to 
insure;  that  they  did  not  insure  the  buildings  as  they  had  agreed  and 
did  not  notify  him  of  their  intention  not  to  do  so;  that  the  buildings 
were  destroyed  by  fire  March  1,  1897,  without  fault  on  the  plaintiff's 
part.     The  defendants  demurred. 

John  T.  Bartlett,  Burnharn,  Broxvn  &  Warren,  and  Isaac  W.  Smith, 
for  the  plaintiff. 

Drury  &  Peaslee,  for  the  defendants. 

Blodgett,  J.  While  an  offer  will  not  mature  into  a  complete  and 
effectual  contract  until  it  is  acceded  to  by  the  party  to  whom  it  is 
made  and  notice  thereof,  either  actual  or  constructive,  given  to  the 
maker  (Abbott  v.  Shepard,  48  N.  H.  14,  17;  Perry  v.  Insurance  Co., 
67  N.  H.  291,  294,  295),  it  must  be  conceded  to  be  within  the  power 
of  the  maker  to  prescribe  a  particular  form  or  mode  of  acceptance ; 
and  the  defendants  having  designated  in  their  offer  what  they  would 
recognize  as  notice  of  its  acceptance,  namely,  failure  of  the  plaintiff 
to  notify  them  to  the  contrary,  they  may  properly  be  held  to  have 
waived  the  necessity  of  formally  communicating  to  them  the  fact  of 
its  acceptance  by  him. 

But  this  did  not  render  acceptance  on  his  part  any  less  necessary 
than  it  would  have  been  if  no  particular  form  of  acceptance  had  been 
prescribed,  for  it  is  well  settled  that  "a  party  cannot,  by  the  wording 
of  his  offer,  turn  the  absence  of  communication  of  acceptance  Into. aii^ 
acceptance,  and  compel  the  recipient  of  his  offer  to  refuse  it  at  the 
peril  of  being  held  to  have  accepted  it.^  ClarYTTont.  ^1^  SzT^'^A  ~ 
person  is  under  no  obligation  to  do  or  say  anything  concerning  a 
proposition  which  he  does  not  choose  to  accept.  There  must  be 
actual  acceptance  or  there  is  no  contract."  More  v.  Insurance  Co., 
130  N.  Y.  537,  547.  And  to  constitute  acceptance,  "there  must  be 
words,  written  or  spoken,  or  some  other  overt  act."  Bish.  Cont., 
8.  329,  and  authorities  cited. 

If,  therefore,  the  defendants  might  and  did  make  their  offer  in  such 
a  way  as  to  dispense  with  the  communication  of  its  acceptancie  to 
them  in  a  formal  and  direct  manner,  they  did  not  and  could  not  so 
frame  it  as  to  render  the  plaintiff  liable  as  having  accepted  it  merely 
because  he  did  not  communicate  his  intention  not  to  accept  it.  And 
if  the  plaintiff  was  not  bound  by  the  offer  until  he  accepted  it,  the 
delendants  could  not  be,  because  "it  takes  two  to  make  a  bargain," 
and  as  contracts  rest  on  mutual  promises,  both  parties  are  bound,  or 
neither  is  bound. 

The  inquiry  as  to  the  defendants'  liability  for  the  non-performance 
of  their  offer  thus  becomes  restricted  to  the  question,  Did  the  plaintiff 
accept  the  offer,  so  that  it  became  by  his  action  clothed  with  legal 


SECT.   I.]  PRESCOTT   V.   JONES.  147 

consideration  and  perfected  with  the  requisite  condition  of  mutuality? 
As,  in  morals,  one  who  creates  an  expectation  in  another  by  a  gra- 
tuitous promise  is  doubtless  bound  to  make  the  expectation  good,  it 
is  perhaps  to  be  regretted  that,  upon  the  facts  before  us,  we  are  con- 
strained to  answer  the  question  in  the  negative.  While  a  gratuitous 
undertaking  is  binding  in  honor,  it  does  not  create  a  legal  responsi- 
bility. Whether  wisely  and  equitably  or  not,  the  law  requires  a 
consideration  for  those  promises  which  it  will  enforce;  and  as  the 
plaintiff  paid  no  premium  for  the  policy  which  the  defendants  pro- 
posed to  issue,  nor  bound  himself  to  pay  any,  there  was  no  legal 
consideration  for  their  promise,  and  the  law  will  not  enforce  it. 

Then,  again,  there  was  no  mutuality  between  the  parties.  All  the 
plaintiff  did  was  merely  to  determine  in  his  own  mind  that  he  would 
accept  the  offer  —  for  there  was  nothing  whatever  to  indicate  it  by 
way  of  speech  or  other  appropriate  act.  Plainly,  this  did  not  create 
any  rights  in  his  favor  as  against  the  defendants.  From  the  very 
nature  of  a  contract  this  must  be  so ;  and  it  therefore  seems  super- 
fluous to  add  that  the  universal  doctrine  is  that  an  uncommunicated 
mental  determination  cannot  create  a  binding  contract. 

Nor  is  there  any  estoppel  against  the  defendants,  on  the  ground 
that  the  plaintiff  relied  upon  their  letter  and  believed  they  would 
insure  his  buildings  as  therein  stated. 

The  letter  was  a  representation  only  of  a  present  intention  or 
purpose  on  their  part.  "It  was  not  a  statement  of  a  fact  or  state  of 
things  actually  existing,  or  past  and  executed,  on  which  a  party 
might  reasonably  rely  as  fixed  and  certain,  and  by  which  he  might 
properly  be  guided  in  his  conduct.  .  .  .  The  intent  of  a  party,  how- 
ever positive  or  fixed,  concerning  his  future  action,  is  necessarily 
uncertain  as  to  its  fulfilment,  and  must  depend  on  contingencies  and 
be  subject  to  be  changed  and  modified  by  subsequent  events  and  cir- 
cumstances. .  .  .  On  a  representation  concerning  such  a  matter  no 
person  would  have  a  right  to  rely,  or  to  regulate  his  action  in  relation 
to  any  subject  in  which  his  interest  was  involved  as  upon  a  fixed, 
certain,  and  definite  fact  or  state  of  things,  permanent  in  its  nature 
and  not  liable  to  change.  .  .  .  The  doctrine  of  estoppel  ...  on  the 
ground  that  it  is  contrary  to  a  previous  statement  of  a  party  does  not 
apply  to  such  a  representation.  The  reason  on  which  the  doctrine 
rests  is,  that  it  would  operate  as  a  fraud  if  a  party  was  allowed  to 
aver  and  prove  a  fact  to  be  contrary  to  that  which  he  had  previously 
stated  to  another  for  the  purpose  of  inducing  him  to  act  and  to  alter 
his  condition,  to  his  prejudice,  on  the  faith  of  such  previous  state- 
ment. But  the  reason  wholly  fails  when  the  representation  relates 
only  to  a  present  intention  or  purpose  of  a  party,  because,  being  in 
its  nature  uncertain  and  liable  to  change,  it  could  not  properly  form 
a  basis  or  inducement  upon  which  a  party  could  reasonably  adopt 
any  fixed  and  permanent  course  of  action."  Langdon  v.  Doud,  10 
Allen,  433,  436,  437,  .Jackson  v.  Allen,  120  Mass.  64,  79;  Jorden  v. 
Money,  5  H.  L.  Cas.  185. 


148  PHILLIPS   V.   MOOR.  [CHAP.    I. 

"An  estoppel  cannot  arise  from  a  promise  as  to  future  action  with 
respect  to  a  right  to  be  acquired  upon  an  agreement  not  yet  made." 
Insurance  Co.  v.  Mowry,  96  U.  S.  544,  547.  "  The  doctrine  has  no 
place  for  application  when  the  statement  relates  to  rights  depending 
upon  contracts  yet  to  be  made,  to  which  the  person  complaining  is  to 
be  a  party.  He  has  it  in  his  power  in  such  cases  to  guard  in  advance 
against  any  consequences  of  a  subsequent  change  of  intention  by  the 
person  with  whom  he  is  dealing."  lb.  548.  See,  in  addition:  White 
V.  Ashton,  51  N.  Y.  280;  Mason  v.  Bridge  Co.,  28  W.  Va.  639,  649; 
Jones  V.  Parker,  67  Tex.  76,  81,  82;  Big.  Estop.  (5th  ed.)  574. 

To  sum  it  up  in  a  few  words,  the  case  presented  is,  in  its  legal  as 
pects,  one  of  a  party  seeking  to  reap  where  he  had  not  sown,  and  to 
gather  where  he  had  not  scattered.  Dennurrer  sustained?- 

Peaslee,  J.,  did  not  sit:  the  others  concurred. 


AUGUSTUS  L.    PHILLIPS,  by  his   Guardian,  v. 
GEORGE  L.   MOOR. 

Supreme  -Judicial  Court  of  Maine,  March  8,   1880. 

[Reported  in  71  Maine,  78.] 

Barrows,  J.''  Negotiations  by  letter,  looking  to  the  purchase  by 
the  defendant  of  a  quantity  of  hay  in  the  plaintiff's  barn,  had  resulted 
in  the  pressing  of  the  hay  by  the  defendant's  men,  to  be  paid  for  at 
a  certain  rate  if  the  terms  of  sale  could  not  be  agreed  on;  and  in 
written  invitations  from  plaintiff's  guardian  to  defendant,  to  make 
an  offer  for  the  hay,  in  one  of  which  he  says:  "If  the  price  is  satis- 
factory  I  will  write  you  on  receipt  of  it; "  and  in  the  other:  "If  your 
Qffer  is  satisfactory  I  shall  accept  it;  if  not,  I  will  send  3'ou  the  money 
for  pressing."  Friday,  June  14th,  defendant  made  an  examination 
of  the  hay  after  it  had  been  pressed,  and  wrote  to  plaintiff's  guardian, 
same  day  .  .  .  "Will  give  $9.50  per  ton,  for  all  but  three  tons,  and 
for  that  I  will  give  $5.00."  Plaintiff's  guardian  lived  in  Carmel, 
fourteen  miles  from  Bangor,  where  defendant  lived,  and  there  is  a 
daily  mail  communication  each  way  between  the  two  places.  The 
card  containing  defendant's  offer  was  mailed  at  Bangor,  June  15, 
and  probably  received  by  plaintiff  in  regular  course,  about  nine 
o'clock  a.  m.  that  day.  The  plaintiff  does  not  deny  this,  though  he 
says  he  does  not  always  go  to  the  office,  and  the  mail  is  sometimes 
carried  by.  Receiving  no  better  offer,  and  being  offered  less  by 
another  dealer,   on  Thursday,   June  20th,    he  went  to  Bangor,  and 

1  Felthouse  v.  Bindley,  11  C.  B.  n.  8.  868,  ace. 

2  A  portion  of  the  opinion  is  omitted  in  which _it  was  held  that  on  the  completion 
of  the  contract,  title  to  the  hay  passed  to  the  huyer. 


SECT.    I.]  PHILLIPS   V.   MOOR.  149 

there,  not  meeting  the  defendant,  sent  him  through  the  post-office  a 
card,  in  which  he  says  he  was  in  hopes  defendant  would  have  paid 
him  $10.00  for  the  best  quality:  "But  you  can  take  the  hay  at  your 
offer,  and  when  you  get  it  hauled  in,  if  you  can  pay  the  $10.00  I 
would  like  to  have  you  do  it,  if  the  hay  proves  good  enough  for  the 
price."  Defendant  received  this  card  that  night  or  the  next  morning, 
made  no  reply,  and  Sunday  morning  the  hay  was  burnt  in  the  barn. 
Shortly  after,  when  the  parties  met,  the  plaintiff  claimed  the  price  of 
the  hay  and  defendant  denied  his  liability,  and  asserted  a  claim  for 
the  pressing.     Hence  this  suit. 

The  guardian's  acceptance  of  the  defendant's  offer  was  absolute 
and  uncQjiditio»al.  It  is  not  in  any  legal  sense  qualified  by  the" 
expression  of  his  hopes,  as  to  what  the  defendant  would  have  done, 
or  what  he  would  like  to  have  him  do,  if  the  hay  when  hauled  proved 
good  enough.  Aside  from  all  this,  the  defendant  was  told  that  he 
could  take  the  hay  at  his  owu  offer.  It  seems  to  have  been  the  inten- 
tion and  understanding  of  both  the  parties  that  the  property  should 
pass.  The  defendant  does  not  deny  what  the  guardian  testifies  he 
told  him  at  their  conference  after  the  hay  was  burned,  —  that  he  had 
agreed  with  a  man  to  haul  the  hay  for  sixty  cents  a  ton.  The  guar- 
dian does  not  seem  to  have  claimed  any  lien  for  the  price,  or  to  have 
expected  payment  until  the  hay  should  have  been  hauled  by  the 
defendant.  But  the  defendant  insists  that  the  guardian's  acceptance 
of  his  offer  was  not  seasonable;  that  in  the  initiatory  correspondence 
the  guardian  had  in  substance  promised  an  immediate  acceptance  or 
rejection  of  such  offer  as  he  might  make,  and  that  the  offer  was  not, 
in  fact,  accepted  within  a  reasonable  time. 

If  it  be  conceded  that  for  want  of  a  more  prompt  acceptance  the 
defendant  had  the  right  to  retract  his  offer,  or  to  refuse  to  be  bound 
by  it  when  notified  of  its  acceptance,  still  the  defendant  did  not  avail 
himself  of  such  right.  Two  days  elapsed  before  the  fire  after  the 
defendant  had  actual  notice  that  his  offer  was  accepted,  and  he  per- 
mitted the  guardian  to  consider  it  sold,  and  made  a  bargain  with  a 
third  party  to  haul  it. 

It  is  true  that  an  offer,  to  be  binding  upon  the  party  making  it, 
must  be  accepted  within  a  reasonable  time.  Peru  v.  Turner,  10  Maine, 
185 ;  but  if  the  party  to  whom  it  is  made,  makes  known  his  accept- 
ance of  it  to  the  party  making  it,  within  any  period  which  he  could 
fairly  have  supposed  to  be  reasonable,  good  faith  requires  the  maker, 
if  he  intends  to  retract  on  account  of  the  delay,  to  make  known  that 
intention  promptly.  If  he  does  not,  he  must  be  regarded  as  waiving 
any  objection  to  the  acceptance  as  being  too  late.^ 

1  "  In  the  instruction  the  Court  ruled,  in  effect,  that  the  acceptance  became  binding 
upon  the  parties,  unless  the  plaintiff  immediately  notified  the  defendant  that  he  had 
withdrawn  his  offer.  The  rule  now  supported  by  the  great  preponderance  of  author- 
ity, and  almost,  if  not  quite,  universally  adhered  to,  is  that,  when  a  proposal  is  accepted 
hj  letter,  the  contract  is  deemed  to  become  complete  when  the  letter  is  mailed,  pro- 


150  ANONYMOUS.  [CHAP.   I. 


SECTION  11. 
CONSIDERATION. 


r^' 


A.  —  Early  Development. 

ANONYMOUS. 
In  the  Common  Pleas,  Michaelmas  Term,  1504. 

[Reported  in  Keilwey,  77  placitum,  25.] 

In  action  of  trespass  on  the  case  the  plaintiff  counted  that  he  had 
bought  of  the  defendant  twenty  quarters  of  malt  for  a  certain  sum  of 
money  paid  beforehand,  and  he  left  it  with  the  defendant  to  safely 
keep  to  the  use  of  the  plaintiff  until  a  certain  day  now  passed,  and 
to  do  this  the  defendant  super  se  assumpsit.  Before  the  day  the 
defendant  from  the  good  custody  of  the  defendant  himself  had  con- 

vided  the  offer  is  standing,  and  the  acceptance  is  made  within  a  reasouahle  time.  .  .  . 
It  will  be  seen  that  the  rule  is  sharply  defined.  The  instruction  given  seems  to  us  to 
be  a  departure  from  it.  It  assumes  that  the  contract  in  the  case  at  bar  was  not  neces- 
sarily complete  when  the  letter  of  acceptance  was  mailed,  and  that  no  contract  would 
have  been  made,  if  the  plaintiff  immediately  upon  the  receipt  of  the  letter  had  notified 
the  defendant  that  the  offer  was  withdrawn.  Tlie  departure  from  the  recognized  rule 
must  have  been  deemed  called  for  upon  the  ground  that  the  letter  of  acceptance  was 
not  mailed  witliin  a  reasonable  time.  The  court,  doubtless,  assumed  the  rule  to  be, 
that  a  contract  by  the  correspondence  is  not  completed  by  the  mailing  of  the  letter  of 
acceptance,  where  that  is  not  done,  within  a  reasonable  time.  .  .  .  Taking  this  to  be  the 
rule,  we  have  to  inquire  whether  an  acceptance  after  the  time  limited,  or,  in  the  absence 
of  an  express  limitation,  after  the  lapse  of  a  reasonable  time,  imposes  upon  the  person 
making  the  offer  any  obligation.  The  theory  of  the  court  below  .seems  to  have  been 
that  it  does.  But  in  our  opinion  it  does  not.  The  offer,  unless  sooner  withdrawn, 
stands  during  the  time  limited,  or,  if  there  is  no  express  limitation,  during  a  reasona- 
ble time.  Until  the  end  of  that  time  the  offer  is  regarded  as  being  constantly  repeated. 
Chitty  on  Cont.  (11th  ed.),  17.  After  that  there  is  no  offer,  and,  properly  considered, 
nothing  to  withdraw.  The  time  having  expired,  there  is  nothing  which  the  acceptor 
can  do  to  revive  the  offer,  or  produce  an  extension  of  time."  Ferrier  v.  Storer,  63  la. 
484,  487.     See  also  Maclay  v.  Harvey,  90  111.  525. 

[The  offerer  when  he  has  received  an  acceptance  which  is  too  late]  "  would  act 
prudently  and  fairly  if  he  informed  his  correspondent  that  he  had  given  up  the  trans- 
action and  was  no  longer  di.sposcd  to  bind  himself  by  the  agreement  in  regard  to  which 
he  had  at  first  taken  the  initiative.  Otherwise,  indeed,  his  silence  might  be  consid- 
ered as  importing  tacit  assent  to  the  proposition  ex  novo  contained  in  the  late  acceptance. 
.  .  .  These  considerations  have  such  force  that  they  have  led  to  some  legislation  im- 
posing on  every  one  who  has  made  an  offer  by  correspondence  the  duty  to  inform  his 
correspondent  that  the  acceptance  has  arrived  too  late.  German  Commercial  Code, 
Art.  319  ;  Swiss  Federal  Code  of  Obligations,  Art.  5;  "  Valery,  Contrats  par  Corre- 
spondance,  §  203. 


SECT,   n.]  ANONYMOUS.  151 

verted  the  said  malt  to  his  own  use,  to  the  iujury  and  damage  of  the 
plaintiff,  &c.  More.  The  plaintiff  has  counted  that  he  bought  twenty 
quarters  of  malt  and  has  not  shown  that  it  was  in  sacks,  so  by  the 
purchase  no  property  was  passed,  for  the  plaintiff  cannot  take  this 
malt  from  the  storehouse  of  the  defendant  because  of  such  a  purchase 
of  uncertain  malt,  nor  can  he  have  action  of  detinue,  nor,  for  the  same 
reason,  action  on  the  case,  but  as  the  case  is  here  he  is  put  to  his 
action  of  debt  for  the  malt.  And  the  matter  was  discussed  at  the 
bar,  and  then  by  all  the  bench.  On  which  Frowike  said :  Truly  the 
case  is  good,  and  many  good  cases  touching  the  matter  have  been  put ; 
nevertheless  the  words  at  the  purchase  are  the  whole  matter.  As,  if 
a  man  sells  me  one  of  his  horses  in  his  stable,  and  grants  further  that 
he  will  deliver  the  horse  to  me  by  a  certain  day,  I  shall  not  take  the 
horse  without  his  delivery.  But  if  he  sells  to  me  one  of  his  horses 
within  his  stable  for  a  certain  sum  of  money  paid  beforehand,  I  can  take 
the  horse  —  that  is  such  horse  as  pleases  me  —  without  any  delivery. 
And  in  both  cases  if  he  aliens  or  converts  all  his  horses  to  his  own 
use  so  that  I  cannot  have  my  bargain  carried  out,  I  shall  have  action 
on  my  case  against  him  because  of  the  payment  of  the  money.  And 
so  if  I  sell  ten  acres  of  land,  parcel  of  my  manor,  and  then  I  make 
feoffment  of  the  manor,  you  will  have  good  action  against  me  on 
your  case  because  of  the  receipt  of  your  money,  and  in  this  case  you 
have  no  otlier  remedy  against  me.  And  so  if  I  sell  you  certain  land, 
and  I  covenant  further  to  enfeoff  you  by  a  certain  day  and  do  not, 
you  will  have  good  action  on  the  case,  and  that  is  adjudged.  And  so 
if  I  sell  you  twenty  oaks  from  my  wood  for  money  paid,  and  then  I 
alien  the  wood,  action  on  the  case  lies.  And  so  if  I  deliver  money  to 
a  man  to  deliver  over  and  he  does  not,  but  converts  the  money  to  his 
own  use,  I  can  elect  to  have  action  of  account  against  him  or  action 
on  my  case ;  but  the  stranger  has  no  other  remedy  except  action  of 
account.  And  so  if  I  bail  my  goods  to  a  man  to  safely  keep,  and  he 
takes  the  custody  upon  him,  and  my  goods  for  lack  of  good  custody 
are  lost  or  destroyed,  I  shall  have  action  of  detinue,  or  on  my  case  at 
my  pleasure,  and  shall  charge  him  by  this  word  super  se  assumpsit. 
And  if  I  make  use  of  my  action  of  detinue  and  he  wages  his  law,  I 
shall  be  barred  in  action  on  my  case,  because  since  I  had  liberty  to 
elect  action  of  detinue  it  was  at  my  peril,  and  I  have  lost  the  advan- 
tage of  the  action  on  my  case,  and  this  is  adjudged.  As,  if  I  hold  an 
acre  of  land  by  fealty,  twenty  shillings  of  rent,  or  by  a  hawk  or  a  rose, 
in  the  disjunctive,  in  this  case  before  the  rent  day  I  have  liberty  to 
pay  the  hawk,  rose,  or  otherwise  the  twenty  shillings,  at  my  pleasure. 
And  if  I  covenant  with  a  carpenter  to  build  a  house  and  pay  him 
twenty  pounds  for  the  house  to  be  built  by  a  certain  day,  now  I  shall 
have  good  action  on  my  case  because  of  payment  of  my  money,  and 
still  it  sounds  only  in  covenant,  and  without  payment  of  money  in 
this  case  no  remedy;  and  still  if  he  builds  it  and  misbuilds  it,  action 
on  my  case  lies.     And  also  for  nonfeasance,  if  the  money  is  paid 


152  HUNT   V.   BATE.  [CHAP.  T. 

iction  on  the  case  lies.  And  hence  it  seems  to  me  in  the  case  at  bar 
the  payment  of  the  money  is  the  cause  of  the  action  on  the  case  with- 
out any  passing  of  any  property,  «fec.,  et  adjoiirnatur,  &c.^ 


HUNT  V.  BATE. 
Easter  Term,  1568. 

^  u'   ^  [Reported  in  Dyer,  272.  | 

The  servant  of  a  man  was  arrested,  and  imprisoned  in  the  Compter 
in  London  for  trespass  ;  and  he  was  let  to  mainprize  by  the  manucap- 
tion of  two  citizens  of  London  (who  were  well  acquainted  with  the  mas- 
ter), in  consideration  that  the  business  of  the  master  should  not  go 
undone.  And  afterwards,  before  judgment  and  condemnation,  the  mas- 
ter upon  the  said  friendly  consideration  promised  and  undertook  to  one 
of  the  mainpernors  to  save  him  harmless  against  the  party  plaintifi'  from 
all  damages  and  costs,  if  an}'  should  be  adjudged,  as  happened  after- 
wards in  reality ;  whereupon  the  surety  was  compelled  to  pay  the  con- 
demnation, sc.  31/.,  &c.  And  thereupon  he  brought  an  action  on  the 
case,  and  the  undertaking  was  traversed  by  the  master,  and  found  in 
London  at  nisi  prins  against  him.  And  now  in  arrest  of  judgment  it 
was  moved  that  the  action  does  not  he.  And  by  the  opinion  of  the 
Court  it  does  not  lie  in  this  matter,  because  there  is  no  consideration 
wherefore  the  defendant  should  be  charged  for  the  debt  of  his  servant, 
unless  the  master  had  first  promised  to  discharge  the  plaintiif  before 
the  enlargement  and  mainprize  made  of  his  servant,  for  the  master  did 
never  make  request  to  the  plaintift*  for  his  servant  to  do  so  much,  but 
he  did  it  of  his  own  head.     Wherefore,  &c. 

But  in  another  like  action  on  the  case,  brought  upon  a  promise  of  20/. 
made  to  the  plaintiff  by  the  defendant,  in  consideration  that  the  plaintiff, 
at  the  special  instance  of  the  said  defendant,  had  taken  to  wife  the 
cousin  of  the  defendant,  that  was  good  cause,  although  the  marriage 
was  executed  and  past  before  the  undertaking  and  promise,  because  the 
marriage  ensued  the  request  of  the  defendant.^  And  land  may  be  also 
given  in  frank-marriage  with  the  cousin  of  the  donor  as  well  after  the 
marriage  as  before,  because  the  marriage  may  be  intended  the  cause, 
&c.  And  therefore  the  opinion  of  the  Court  in  this  case  this  Term  was, 
that  the  plaintiff  should  recover  upon  the  verdict,  &c.  And  so  note  the 
diveroity  between  the  aforesaid  cases. 

^  The  stages  in  the  early  development  of  assumpsit  are  shown  in  Professor  Ames's 
articles  on  The  History  of  Assumpsit,  2  Harv.  L.  Rev.  1,  53. 

2  Riggs  V.  Bullingham,  Cro.  Eliz.  715;  Bosden  v.  Thinne,  Yelv.  40;  Field  v. 
Dale,  1  KoUe's  Ab.  11,  plac.  8;  Townsend  v.  Hunt,  Cro.  Car.  418;  Oliverson  v. 
Wood,  3  Lev.  419,  ace. 


SECT.   II.]  SIDENHAM   AND   WORLINGTON.  153 

SMITH  AND   SMITH'S    CASE. 
In  the  Queen's  Bench,  Michaelmas  Term,  1583. 

[Reported  in  3  Leonard,  88.] 

Lambert  Smith,  executor  of  Tho.  Smith,  brought  an  action  upon 
the  case  against  John  Smith,  that  whereas  the  testator,  having  divers 
children  infants,  and  l^ing  sick  of  a  mortal  sickness,  being  careful  to 
provide  for  his  said  children  infants,  the  defendant,  in  consideration 
the  testator  would  commit  the  education  of  his  children,  and  the  dis« 
position  of  his  goods  after  his  death,  during  the  minority  of  his  said 
children,  for  the  education  of  the  said  children,  to  him,  promised  to  the 
testator  to  procure  the  assurance  of  certain  customary  lands  to  one  of 
the  children  of  the  said  testator ;  and  declared  further,  that  the  tes- 
tator thereupon  constituted  the  defendant  overseer  of  his  will,  and 
ordained  and  appointed  b}'  his  will  that  his  goods  should  be  in  the 
disposition  of  the  defendant,  and  that  the  testator  died,  and  that  by 
reason  of  that  wiU,  the  goods  of  the  testator  to  such  a  value  came  to  the 
defendant's  hands  to  his  great  profit  and  advantage.  And  upon  non 
assumpsit  pleaded,  it  was  found  for  the  plaintiff.  And  upon  exception 
to  the  declaration  in  arrest  of  judgment  for  want  of  sufficient  considera- 
tion, it  was  said  by  What,  C.  J.,  that  here  is  not  any  benefit  to  the 
defendant  that  should  be  a  consideration  in  law  to  induce  him  to  make 
this  promise  ;  for  the  consideration  is  no  other  but  to  have  the  disposi- 
tion of  the  goods  of  the  testator  pro  educatione  liberorum.  For  all  the 
disposition  is  for  the  profit  of  the  children  ;  and  notwithstanding  that 
buch  overseers  commonly  make  gain  of  such  disposition,  yet  the  same  is 
against  the  intendment  of  the  law,  which  presumes  every  man  to  be  true 
and  faithful  if  the  contrary  be  not  showed  ;  and  therefore  the  law  shall 
intend  that  the  defendant  hath  not  made  an}'  private  gain  to  himself, 
but  that  he  hath  disposed  of  the  goods  of  the  testator  to  the  use  and 
benefit  of  his  children  according  to  the  trust  reposed  in  him.  Which 
Ayliffe,  J.,  granted;  Gawdt,  J.,  was  of  the  contrary  opinion.  And 
afterwards  by  award  of  the  Court  it  was  that  the  plaintiff  nihil  capiak 
per  billam. 


SIDENHAM   AND  WORLINGTON. 
In  the  Common  Pleas,  Easter  Term,  1585. 

[ReporUd  in  2  Leonard,  224.] 

In  an  action  upon  the  case  upon  a  promise,  the  plaintiff  declared  that 
he,  at  the  request  of  the  defendant,  was  surety  and  bail  for  J.  S.,  who 
was  arrested  in  the  King's  Bench  upon  an  action  of  30/.,  and  that  after- 


154  SLDENHAM   AND   WOELINGTON.  [CHAP.   I. 

vN'ards,  foi  the  default  of  J.  S.,  he  was  constrained  to  pay  the  30/.  ;  after 
which  the  defendant,  meeting  witli  tlie  plaintiff',  promised  him  for  the 
same  consideration  that  he  would  repay  that  30/.,  which  he  did  not  pay  ; 
upon  which  the  plaintiff  brought  the  action.  The  defendant  pleaded 
non  assumpsit,  upon  which  issue  was  joined,  which  was  found  for  the 
plaintiff.  Wahnesley,  Serjt.,  for  the  defendant,  moved  the  Court  that 
this  consideration  will  not  maintain  the  action,  because  the  consideration 
and  promise  did  not  concur  and  go  together  ;  for  the  consideration  was 
long  before  executed,  so  as  now  it  cannot  be  intended  that  the 
promise  was  for  the  same  consideration :  as  if  one  giveth  me  a  horse, 
and  a  month  after  I  promise  him  10/.  for  the  said  horse,  he  shall 
never  have  debt  for  the  10/.,  nor  assumpsit  upon  that  promise;  for 
there  it  is  neither  contract  nor  consideration,  because  the  same  is 
executed.  Anderson.  This  action  will  not  lie ;  for  it  is  but  a  bare 
agreement  and  nudum  pachim.^  because  the  contract  was  determined, 
and  not  in  esse  at  the  time  of  the  promise  ;  but  he  said  it  is  otherwise 
jpon  a  consideration  of  marriage  of  one  of  his  cousins,  for  marriage 
IS  always  a  present  consideration.  "Windham  agreed  with  Anderson, 
and  he  put  the  case  in  3  H.  7.  If  one  selleth  a  horse  unto  another, 
and  at  another  day  he  will  warrant  him  to  be  sound  of  limb  and  mem- 
ber, it  is  a  void  wai-rant,  for  that  such  waiTanty  ought  to  have  been 
made  or  given  at  such  time  as  tlie  horse  was  sold.  Pekiam,  J.,  con- 
ceived that  the  action  did  well  lie  ;  and  he  said  that  this  case  is  not 
like  unto  the  cases  which  have  been  put  of  the  other  side  :  for  there  is 
a  great  difference  betwixt  contracts  and  this  case ;  for  in  contracts 
upon  sale,  the  consideration  and  the  promise  and  the  sale  ought  to 
meet  together ;  for  a  contract  is  derived  from  con  and  trahere,  which  is 
a  drawing  together,  so  as  in  contracts  every  thing  which  is  requisite 
ouglit  to  concur  and  meet  together,  viz.,  the  consideration  of  the  one 
side,  and  the  sale  or  the  promise  on  the  other  side.  But  to  maintain  an 
action  upon  an  assumpsit,  the  same  is  not  requisite,  for  it  is  sufficient 
if  there  be  a  moving  cause  or  consideration  precedent;  for  which 
cause  or  consideration  the  promise  was  made  ;  and  such  is  the  common 
practice  at  this  day.  For  in  an  action  upon  the  case  upon  a  promise, 
the  declaration  is  laid  that  the  defendant,  for  and  in  consideration  of 
20/.  to  him  i):iid  (posfen  soil.),  that  is  to  say,  at  a  day  after  super  se 
assnmpsif,  and  that  is  good  ;  and  yet  there  the  consideration  is  laid  to 
be  executed.  And  he  said  that  the  case  in  Dyer.  10  EHt;.  272,  would 
prove  the  case.  For  there  the  case  was,  that  the  apprentice  of  one 
Hunt  was  arrested  when  his  master  Hunt  was  in  the  country',  and  one 
Baker,  one  of  the  neighbors  of  Hunt,  to  keep  the  said  apprentice  out 
of  prison,  became  his  bail,  and  paid  the  debt.  Afterwards  Hunt,  the 
master,  returning  out  of  the  country,  thanked  Baker  for  his  neighborly 
kindness  to  his  apprentice,  and  j)romised  him  that  he  would  repay  him 
the  sum  which  he  had  paid  for  his  servant  and  apprentice  :  and  after 
wards,  upon  that  promise,  Baker  brought  an  action  upon  the  case 
against  Hunt,  and  it  was  adjudged  in  that  case  that  the  action  would 
not  lie,  because  the  consideration  was  precedent  to  the  promise,  because 


SECT.   II.]  STUELYN   V.   ALBANY.  155 

it  was  executed  and  deteraiined  long  before.  But  in  "Irat  case  it  was 
holden  by  all  the  justices  that  if  Hunt  had  requested  Baker  to  have 
been  surety  or  bail,  and  afterwards  Hunt  had  made  the  promise  for 
the  same  consideration,  the  same  had  been  good,  for  that  the  con- 
sideration did  precede,  and  was  at  the  instance  and  request  of  the 
defendant.  Rhodes,  J.,  agreed  with  Periam  ;  and  he  said  that  if  one 
serv^e  me  for  a  year,  and  hath  nothing  for  his  service,  and  afterwards, 
at  the  end  of  the  year,  I  promise  him  20?.  for  his  good  and  faithful 
service  ended,  he  may  have  and  maintain  an  action  upon  the  case  upon 
the  same  promise,  for  it  is  made  upon  a  good  consideration  ;  but  if  a 
servant  hath  wages  given  him,  and  his  master  ex  abundanti  doth  prom- 
ise him  10/.  more  after  his  service  ended,  he  shall  not  maintain  an 
action  for  that  1 0/.  upon  the  said  promise ;  for  there  is  not  any  new 
cause  or  consideration  preceding  the  promise  ;  which  difference  was 
agreed  by  all  the  justices  ;  and  afterwards,  upon  good  and  long  advice, 
and  consideration  had  of  the  principal  case,  judgment  was  given  for 
the  plaiutiff ;  and  they  much  relied  upon  the  case  of  Hunt  and  Baker, 
10  Eliz.,  Dyer,  272. 


CRIPPS   V.  GOLDING. 
In  the  Queen's  Bench,  Michaelmas  Term,  1586. 

[^Reported  in  1  Rollers  Abridgment,  30.] 

If  a  man,  in  consideration  of  a  sun-ender  and  of  101.  paid,  promises 
to  do  such  a  thing,  although  the  surrender  cannot  be  made,  so  that 
that  consideration  is  void,  yet  the  action  is  maintainable  upon  the 
other  consideration.^ 


SIR  ANTHONY   STURLYN   v.    ALBANY. 
In  the  Queen's  Bench,  Michaelmas  Term,  1587. 

[Reported  in  Croke  Elizabeth,  67.] 

Assumpsit.  The  case  was,  the  plaintiff  had  made  a  lease  to  J.  S.  of 
land  for  life,  rendering  rent.     J.  S.  grants  all  his  estate  to  the  defend- 

1  In  1  Leon,  296,  s.  c.  nom.  Crisp  and  Goldinpj's  Case,  it  was  said  by  Coke,  arcfiiendo: 
"Where  two  or  many  considerations  are  put  in  a  declaration,  although  some  be  void, 
yet  if  one  be  good,  the  action  well  lieth,  and  damages  shall  be  taxed  accordingly." 
Bradburne  v.  Bradburne,  Cro.  El.  149  ;  Colston  r.  Carre,  1  Rolle's  Ab.  30,  Cro.  El.  847  ; 
Crisp  V.  Gamel,  Cro.  Jac.  128;  Best  v.  Jolly,  1  Sid.  38,  ace. 


156  STRANGBOEOUGH   AND    WARNER.  [CHAP.   I. 

ant ;  the  rent  was  behind  for  divers  years  ;  the  plaintiff  demands  the 
rent  of  the  defendant,  who  assumed  that  if  the  plaintiff  could  show  to 
him  a  deed  that  the  rent  was  due,  that  he  would  pay  to  him  the  rent 
and  the  arrearages  ;  the  plaintiff  allegeth  that  upon  such  a  day  of,  &c., 
at  Warwick,  he  showed  unto  him  the  indenture  of  lease  b}'  which  the 
rent  was  due,  and  notwithstanding  he  had  not  paid  him  the  rent  and 
the  arrearages  due  for  four  years.  Upon  non  assumpsit  pleaded,  it  was 
found  for  the  plaintiff,  and  damages  assessed  to  so  much  as  the  rent 
and  arrearages  did  amount  unto.  And  it  was  moved  in  arrest  of  judg- 
ment, that  there  was  no  consideration  to  ground  an  action  ;  for  it  is  but 
the  showing  of  the  deed,  which  is  no  consideration.  2.  The  damages 
ought  only  to  be  assessed  for  the  time  the  rent  was  behind,  and  not 
for  the  rent  and  the  aiTcarages ;  for  he  hath  other  remedy  for  the 
rent ;  and  a  recovery  in  this  action  shall  be  no  bar  in  another  action. 
But  it  was  adjudged  for  the  plaintiff:  for  when  a  thing  is  to  be  done 
by  the  plaintiff,  be  it  never  so  small,  this  is  a  sufBcient  consideration 
to  ground  an  action  :  and  here  the  showing  of  the  deed  is  a  cause  to 
avoid  suit ;  and  the  rent  and  arrearages  may  be  assessed  all  in  dam- 
ages. But  the}'  took  order  that  the  plaintiff  should  release  to  the 
defendant  all  the  arrearages  of  rent  before  execution  should  be 
awarded. 

Nota.  In  this  case  it  was  alleged  that  it  hath  been  adjudged,  when 
one  assumeth  to  another,  that  if  he  can  show  him  an  obligation  in  which 
he  was  bound  to  him,  that  he  would  pay  him,  and  he  did  sliow  the 
obligation,  «fee. ,  that  no  action  lieth  upon  this  assumpsit ;  which  was 
affirmed  by  the  justices. 


STRANGBOROUGH  AND   WARNER. 

AU"'"'  In  the  Queen's  Bench,   1588  or  1589. 

[Reported  in  4  Leonard,  3.] 

Note,  That  a  promise  against  a  promise  will  maintain  an  action 
upon  the  case,  as  in  consideration  that  you  do  give  to  me  10^.  on  such 
a  day,  I  promise  to  give  you  10^.  such  a  day  after.^ 

*  See  also  Pecke  v.  Eedman,  Dyer,  113  (1555). 


SECT.    II.]  RICHES   AND   BRIGGS.  157 

JERElVrY   r.    GOOCHMAN. 
In  thb  Common  Pleas,  Michaelmas  Term,  1595. 

[RejHirUd  in  Croke  Elizabeth,  442.] 

Assumpsit.  And  declares  that,  in  consideration  quod  deb'berasset  tt 
dedisset  to  the  defendant  twenty  sheep,  he  assumed  to  pay  unto  him 
five  pounds  at  the  time  of  his  marriage  ;  and  allegeth  in  facto  that  he 
was  married,  &c.  The  issue  was  non  assumpsit,  and  found  for  the 
plaintiff;  and  now  moved  in  arrest  of  judgment,  because  it  is  for  a 
consideration  past ;  for  it  is  in  the  preter  tense  deliber asset,  and  there- 
fore no  cause  of  action.  And  of  that  opinion  was  the  whole  court ; 
wherefore  judgment  was  stayed.* 


,i^- 


RICHES    AND    BRIGGS. 
In  the  Queen's  Bench,  Easter  Term,  1601. 

{Reported  in  Yelverton,  4.] 

In  an  action  on  the  case  the  plaintiff  declared  that,  in  consideration 
he  had  delivered  to  the  defendant  twenty  quarters  of  wheat,  the  defend- 
ant promised  upon  request  to  deliver  the  same  wheat  again  to  the  plain- 
tiff. And  adjudged  a  good  consideration  ;  for  by  Popham  and  tot.  cur 
the  ver}'  possession  of  the  wheat  might  be  a  credit  and  good  counte- 
nance to  the  defendant  to  be  esteemed  a  rich  farmer  in  the  country,  as 
in  case  of  the  delivery  of  1 ,000/.  in  mone}"  to  deliver  again  upon  request ; 
for  by  having  so  much  money  in  his  possession  he  ma}-  happen  to  be 
preferred  in  marriage,  ^uosre,  for  it  seems  an  hard  judgment ;  for  the 
defendant  has  not  any  manner  of  profit  to  receive,  but  only  a  bare  pos- 
session. Nota,  the  truth  of  the  case  was  (which  doth  not  alter  the 
reason  supra)  that  the  plaintiff  had  delivered  to  the  defendant  the  said 
twenty  quarters  of  wheat  to  deliver  over  to  J.  S.  to  whom  the  plaintiff 
was  indebted  in  so  many  quarters,  and  the  defendant  promised  to  de- 
liver the  same  quarters  of  wheat  to  J.  S.  And  because  they  were  not 
delivered,  the  plaintiff  brought  his  action  ut  supra;  and  adjudged  ut 
supra.  But  nota,  the  judgment  was  reversed  in  the  Exchequer,  Miclu 
44  &  45  Eliz.,  as  Hitcham  told  Yelverton.' 

1  Barker  v.  Halifax,  Cro.  Eliz.,  741  ;  Docket  v.  Voyel,  Cro.  Eliz.,  411,  ace. 

2  Howlet  I'.  Osborne,  Cro.  El.,  .380 ;  Game  v.  Harvie,  Yelv.  50 ;  Pickas  v.  Guile, 
Yelv.  128,  ace. ;  Wheatley  v.  Low,  Cro.  Jac.  668,  contra.     See  2  Harv.  L.  Rev.  5. 


168  slade's  case.  [chap,  l 

MAYLARD   v.   KESTER. 

In  the  King's  Bench,  Trinity  Term,   1601. 
[Reported  in  Moore,  711.] 

'  Matlard  brings  actiou  on  the  case  against  Kester  on  assumpsit,  in 
consideration  that  he  would  sell  and  deliver  to  Kester  woollen  cloth  for 
the  funeral  of  a  clerk,  Kester  assumed  to  pay  him  cum  hide  requisltus. 
And  alleges  that  he  sold  and  delivered  divers  cloth  to  him  at  various 
prices,  viz.,  thirty-one  black  striped  garments  for  19/.,  and  so  he 
recites  other  lots  in  the  same  manner,  and  the  sum  amounted  to  160/., 
which  he  requested  Kester  to  pay,  and  he  did  not  pay  according  to 
the  promise  and  assumption  aforesaid.  The  defendant  pleaded  7ion 
assumpsit^  and  verdict  was  for  the  plaintiff,  and  judgment  given. 
And  on  writ  of  error  brought,  the  judgment  was  reversed  in  the 
Exchequer  Chamber,  Michaelmas  Term,  41  &  42  Elizabeth,  because 
debt  properly  lies,  and  not  action  on  the  case,  the  matter  proving  a 
perfect  sale  and  contract. 


SLADE'S   CASE. 
\/\\  Kj  In  the  King's  Bench,  Trinity  Term,   1602. 

[Reported  in  4  Coke,  92  b.^] 


r 


John  Slade  brought  an  action  on  the  case  in  the  King's  Bench 
against  Humphrey  Morley  (which  plea  began  Hil.  38  Eliz.  Rot.  305), 
and  declared,  that  whereas  the  plaintiff,  10th  of  November,  36  Eliz. 
was  possessed  of  a  close  of  land  in  Halberton,  in  the  county  of 
Devon,  called  Rack  Park,  containing  by  estimation  eight  acres  for 
the  term  of  divers  years  then  and  yet  to  come,  and  being  so  pos- 
sessed, the  plaintiff  the  said  10th  day  of  November,  the  said  close 
had  sowed  with  wheat  and  rye,  which  wheat  and  rye,  8  Mail,  37  Eliz. 
were  grown  into  blades,  the  defendant,  in  consideration  that  the 
plaintiff,  at  the  special  instance  and  request  of  the  said  Humphrey, 
had  bargained  and  sold  to  him  the  said  blades  of  wheat  and  rye  grow- 
ing upon  the  said  close  (the  tithes  due  to  the  rector,  &c.  excepted), 
assumed  and  promised  the  plaintiff  to  pay  him  16/.  at  the  feast  of 
St.  John  the  Baptist  then  to  come:  and  for  non-payment  thereof  at 
the  said  feast  of  St.  John  Baptist,  the  plaintiff  brought  the  said 
action:  the  defendant  pleaded  non  assumpsit  modo  et  forma;  and  on 
the  trial  of  this  issue  the  jurors  gave  a  special  verdict,  sc,  that  the 

1  Some  authorities  and  illustrations  are  omitted. 


SECT,  n.]  blade's  case.  159 

defendant  bought  of  the  plaintiff  the  wheat  and  rye  in  blades  growing 
upon  the  said  close  as  is  aforesaid,  pi^out  in  the  said  declaration  is 
alleged,  and  further  found,  that  between  the  plaintiff  and  the  de- 
fendant there  was  no  other  promise  or  assumption  but  only  the  said 
bargain;  and  against  the  maintenance  of  this  action  divers  objec- 
lions  were  made  by  John  Dodderidge  of  counsel  with  the  defendant. 
1.  That  the  plaintiff  upon  this  bargain  might  have  ordinary  remedy 
by  action  of  debt,  which  is  an  action  formed  in  the  Register,  and 
therefore  he  should  not  have  an  action  on  the  case,  which  is  an 
extraordinary  action,  and  not  limited  within  any  certain  form  in  the 
Register;  for  ubi  cessat  remedium  ordinarimn,  ibi  decurrltur  ad 
extraordinarium,  et  nunquam  decurritur  ad  extraordinarium  ubi  valet 
ordinarium^  as  appears  by  all  our  books;  et  nullus  debet  agere  ac- 
tionem de  dolo^  ubi  alia  actio  subest.  The  second  objection  was,  that 
the  maintenance  of  this  action  takes  away  the  defendant's  benefit  of 
wager  of  law,  and  so  bereaves  him  of  the  benefit  which  the  law  gives 
him,  which  is  his  birthright.  For  peradventure  the  defendant  has 
paid  or  satisfied  the  plaintiff  in  private  betwixt  them,  of  which  pay- 
ment or  satisfaction  he  has  no  witness,  and  therefore  it  would  be 
mischievous  if  he  should  not  wage  his  law  in  such  case.  And  that 
was  the  reason  (as  it  was  said)  that  d^Iita-Jiy  simple  contract  shall 
lorbe  fort'eited  to'  the  King  by  outUag4'^'--Qj:^ttain(igX,J.^'ause  then 


bj^ttrc":King's  prerogative  the  subject  would  be  ousted  of  his^wa^ey— 
of  law,  which'i~s"'ET3~birtTIright,  a8"it  is  held  in  40  J^.  3.  5  a...  50  Ass.  1 . -^ 
16  E.  4.  4  b.  and  9  Eliz.  Dyer  262.  and  if  the  King  shall  lose  the 
forfeiture  and  the  debt  in  such  case,  and  the  debtor  by  judgment  of 
the  law  shall  be  rather  discharged  of  his  debt,  before  he  shall  be 
deprived  of  the  benefit  which  the  law  gives  him  for  his  discharge, 
although  in  truth  the  debt  was  due  and  payable;  a  fortiori  in  the  case 
at  bar,  the  defendant  shall  not  be  charged  in  an  action  in  which  he 
shall  be  ousted  of  his  law,  when  he  may  charge  him  in  an  action,  in 
which  he  may  have  the  benefit  of  it:  and  as  to  these  objections,  the 
Courts  of  King's  Bench  and  Common  Pleas  were  divided;  for  the 
Justices  of  the  King's  Bench  held,  that  the  action  (notwithstanding 
such  objections)  was  maintainable,  and  the  Court  of  Common  Pleas 
held  the  contrary.  And  for  the  honor  of  the  law,  and  for  the  quiet 
of  the  subject  in  the  appeasing  of  such  diversity  of  opinions  (quia. 
nil  in  lege  intolerabilms  est  eandem  rem  diverso  jure  censeri)  the  case 
was  openly  argued  before  all  the  Justices  of  England,  and  Barons  of 
the  Exchequer,  sc.  Sir  John  Popham,  Knt.  C.  J.  of  England,  Sir 
Edm.  Anderson,  Knt.  C.  J.  of  the  Common  Pleas,  Sir  W.  Periam, 
Chief  Baron  of  the  Exchequer,  Clark,  Gawdy,  Walmesley,  Fenner, 
Kingsmill,  Savil,  Warburton,  and  Yelverton,  in  the  Exchequer 
Chamber,  by  the  Queen's  Attorney-General  for  the  plaintiff,  and  by 
John  Dodderidge  for  the  defendant,  and  at  another  time  the  case  was 
argued  at  Serjeants'  Inn,  before  all  the  said  Justices  and  Barons,  by 
the  Attorney-General  for  the  plaintiff,  and  by  Francis  Bacon  for  the 


160  slade's  case.  [chap.  i. 

defendant,  and  after  many  conferences  between  the  Justices  and 
Barons,  it  was  resolved,  that  the  action  was  maintainable,  and  that 
the  plaintiff  should  have  judgment.  And  in  this  case  these  points 
were  resolved :  —  I.  Xliat  although  an  action_of^delit-Ji£8  upon  the 
cojitract,  yet  the  bargainoii-inay  have  an  artinn  on  the  rtipo,  or  nn 
action  of  debt  at  his  election,  and  that;,  for  thrpg  i-y.n.j=inn3  or  causes: 
1.  In  respect  of  infinite  precedents  (which  George  Kemp,  Esq.  Sec- 
ondary of  the  Prothonotaries  of  the  King's  Bench  showed  me),  as 
well  in  the  Court  of  Common  Pleas  as  in  the  Court  of  King's  Bench, 
in  the  reigns  of  King  H.  6.  E.  4.  H.  7.  and  H.  8.  by  which  it  appears, 
that  the  plaintiffs  declared  that  the  defendants,  in  consideration  of  a 
sale  to  them  of  certain  goods,  promised  to  pay  so  much  money,  &c. 
in  which  cases  the  plaintiffs  had  judgment.  .  .  .  The  second  cause 
of  their  resolution  was  divers  judgments  and  cases  resolved  in  our 
books  where  such  action  on  the  case  on  Ass.  has  been  maintainable, 
when  the  party  might  have  had  an  action  of  debt,  21  H.  6.  55  b.  12 
E.  4.  13.  13  H.  7.  '2&.  20  H.  7.  4  b.  and  20  H.  7.  8  b.  which  case 
was  adjudged  as  Fitz  James  cites  it,  22  H.  8.  Dyer  22  b.  27  H.  8. 
24  &  25.  in  Tatam's  case,  Norwood  and  Read's  case  adjudged  Plowd. 
Com.  180.  3.  It  was  resolved,  that  every  contract  executory  imports 
in  itself  an  assumpsit,  for  when  one  agrees  to  pay  money,  or  to 
deliver  anything,  thereby  he  assumes  or  promises  to  pay,  or  deliver 
it,  and  therefore  when  one  sells  any  goods  to  another,  and  agrees  to 
deliver  them  at  a  day  to  come,  and  the  other  in  consideration  thereof 
agrees  to  pay  so  much  money  as  such  a  day,  in  that  case  both  parties 
may  have  an  action  of  debt,  or  an  action  on  the  case  on  assumpsit, 
for  the  mutual  executory  agreement  of  both  parties  imports  in  itself 
reciprocal  actions  upon  the  case,  as  well  as  actions  of  debt,  and 
therewith  agrees  the  judgment  in  Read  and  Norwood's  case,  PI.  Com. 
128.  4.  It  was  resolved,  that  the  plaintiff  in  this  action  on  the  case 
on  assumpsit  should  not  recover  only  damages  for  the  special  loss  (if 
any  be)  which  he  had,  but  also  for  the  whole  debt,  so  that  a  recovery 
or  bar  in  this  action  would  be  a  good  bar  in  an  action  of  debt  brought 
upon  the  same  contract;  so  vice  versa,  a  recovery  or  bar  in  an  action 
of  debt,  is  a  good  bar  in  an  action  on  the  case  on  assumpsit.  Vide 
12  E.  4.  13  a.  2  R.  3.  14.  (32)  33  H.  8.  Action  sur  le  case.  Br.  105. 
5.  In  some  cases  it  would  be  mischievous  if  an  action  of  debt  should 
be  only  brought,  and  not  an  action  on  the  case,  as  in  the  case  inter 
Redman  and  Peck,  2  &  3  Ph.  and  Mar.  Dyer  113.  they  bargained 
together,  that  for  a  certain  consideration  Redman  should  deliver  to 
Peck  twenty  quarters  of  barley  yearly  during  his  life,  and  for  non- 
delivery in  one  year,  it  is  adjudged  that  an  action  well  lies,  for 
otherwise  it  would  be  mischievous  to  Peck,  for  if  he  should  be  driven 
to  his  action  of  debt,  then  he  himself  could  never  have  it,  but  his 
executors  or  administrators,  ior  debt  doth  not  lie  in  such  case,  till 
all  the  days  are  incurred,  and  that  would  be  contrary  to  the  bargain 
and  intent  of  the  parties,  for  Peck  provides  it  j'early  for  his  neces- 


SECT.    II.]  EANN   V.    HUGHES.  161 

sary  use:  so  5  Mar.  Br.  Action  sur  le  case  108.  that  if  a  sum  is  given 
in  marriage  to  be  paid  at  several  days,  an  action  upon  the  case  lies 
for  non-payment  at  the  first  day,  but  no  action  of  debt  lies  in  such 
case  till  all  the  days  are  past.  Also  it  is  good  in  these  days  in  as 
many  cases  as  may  be  done  by  the  law,  to  oust  the  defendant  of  his 
law,  and  to  try  it  by  the  country,  for  otherwise  it  would  be  occasion 
of  much  perjury.  6.  It  was  said,  that  an  action  on  the  case  on 
assumpsit  is  as  well  a  formed  action,  and  contained  in  the  register, 
as  an  action  of  debt,  for  there  is  its  form:  also  it  appears  in  divers 
other  cases  in  the  register,  that  an  action  on  the  case  will  lie,  although 
the  plaintiff  may  have  another  formed  action  in  the  Register-  .  .  . 
And  therefore  it  was  concluded,  that  in  all  cases  when  the  Register 
has  two  writs  for  one  and  the  same  case,  it  is  in  the  party's  election 
to  take  either.  But  the  Register  has  two  several  actions,  sc.  action 
upon  the  case  upon  assiutipsit,  and  also  an  action  of  debt,  and  there- 
fore the  party  may  elect  either.  And  as  to  the  objection  which  has 
been  made,  that  it  would  be  mischievous  to  the  defendant  that  he 
should  not  wage  his  law,  forasmuch  as  he  might  pay  it  in  secret:  to 
that  it  was  answered,  that  it  should  be  accounted  his  folly  that  he 
did  not  take  sufficient  witnesses  with  him  to  prove  the  payment  he 
made:  but  the  mischief  would  be  rather  on  the  other  party,  for  now 
experience  proves  that  men's  consciences  grow  so  large  that  the 
respect  of  their  private  advantage  rather  induces  men  (and  chiefly 
those  who  have  declining  estates)  to  perjury:  ior  Jurare  in  propria 
causa  (as  one  saith)  est  scepenumero  hoc  secido  prcecip>itium  diaboli  ad 
detrudendas  miserorum  animas  ad  infernum :  and  therefore  in  debt, 
or  other  action  where  wager  of  law  is  admitted  by  the  law,  the  Judges 
without  good  admonition  and  due  examination  of  the  party  do  not 
admit  him  to  it.  And  as  to  the  case  which  was  cited,  that  debts  or 
duties  due  by  single  contract  where  the  party  may  wage  his  law,  shall 
not  be  forfeited  by  outlawry,  because  the  debtor  will  be  thereby 
ousted  of  his  law:  to  that  it  was  answered  by  the  Attorney-General 
that  in  such  case  by  the  law,  debts  or  duties  shall  be  forfeited  to  the 
King,  and  so  are  the  better  opinions  of  the  books. 


BANN  AND  Another,  Executors  of  Mary  Hughes,  v.  ISABELLA 
HUGHES,  Administratrix  of  J.  Hughes. 

Ik  the  House  of  Lords,  May  14,  1778. 

[Reported  in  7  Term  Reports,  360,  note  {a).\ 

The  declaration  stated  that  on  the  11th  of  June,  1764,  divers 
disputes  had  arisen  between  the  plaintiffs'  testator  and  the  defend- 
ant's intestate,  which  they  refeiTed  to  arbitration ;  that  the  arbitratoi 

VOL.     I.  11 


162  EANN    V.   HUGHES.  [CIIAr.   I. 

awarded  that  the  defendant's  intestate  should  pay  to  the  plaintiffs'  tes- 
tator 983/. ;  that  the  defendant's  intestate  afterwards  died  possessed  of 
effects  sufficient  to  pay  that  sum  ;  that  administration  was  granted  to 
the  defendant ;  that  Mary  Huglies  died,  having  appointed  the  plaintiffs 
her  executors  ;  that  at  the  time  of  her  death  the  said  sum  of  £983  was 
unpaid  :  by  reason  of  which  premises  the  defendant,  as  administratrix, 
became  liable  to  pay  to  the  plaintiffs,  as  executors,  the  said  sum  ;  and 
being  so  liable,  she,  in  consideration  thereof,  undertook  and  promised 
to  pay,  &c.  The  defendant  pleaded  non  assumpsit,  plene  admimstra- 
vit,  and  plene  administravit  except  as  to  certain  goods,  &c.,  which 
were  not  sufficient  to  pay  an  outstanding  bond-debt  of  the  intestate's 
therein  set  forth,  &c.  The  replication  took  issue  on  these  pleas.  Ver- 
dict for  the  plaintiff  on  the  first  issue,  and  for  the  defendant  on  the  two 
last ;  and  on  the  first  a  general  judgment  was  entered  in  B.  R.  against 
the  defendant  de  bonis  propriis.  This  judgment  was  reversed  in  the 
Exchequer  Chamber ;  and  a  writ  of  error  was  afterwards  brought  in  the 
House  of  Lords,  where,  after  argument,  the  following  question  wag 
proposed  to  the  judges  by  the  Lord  Chancellor;  Whether  sufficient 
matter  appeared  upon  the  declaration  to  warrant  after  verdict  the 
judgment  against  the  defendant  in  error  in  her  personal  capacity; 
upon  which  the  Lord  Chief  Baron  Skjmner  delivered  the  opinion  of 
the  judges  to  this  effect :  It  is  undoubtedly  true  that  ever}'  man  is,  by 
the  law  of  nature,  bound  to  fulfil  his  engagements.  It  is  equally  true 
that  the  law  of  this  country  supplies  no  means,  nor  affords  any  remedy, 
to  compel  the  performance  of  an  agreement  made  without  sufficient 
consideration.  Such  agreement  is  nudum  pactum,  ex  quo  non  oritur 
actio ;  and  waatsoever  may  be  the  sense  of  this  maxim  in  the  civil 
law,  it  is  in  the  last-mentioned  sense  only  that  it  is  to  be  understood  in 
our  law.  The  declaration  states  that  the  defendan*;,  being  indebted  as 
administratrix,  promised  to  pay  when  requested ;  and  the  judgment  is 
against  the  defendant  generalh'.  The  being  indebted  is  of  itself  a 
sufficient  consideration  to  ground  a  promise  ;  but  the  promise  must  be 
coextensive  with  the  consideration,  unless  some  particular  consideration 
of  fact  can  be  found  here  to  warrant  the  extension  of  it  against  the 
defendant  in  her  own  capacity.  If  a  person  indebted  in  one  right,  in 
consideration  of  forbearance  for  a  particular  time,  promise  to  pay  in 
another  right,  this  convenience  will  be  a  sufficient  consideration  to 
wan*ant  an  action  against  him  or  her  in  the  latter  right ;  but  here  no 
sufficient  consideration  occurs  to  support  this  demand  against  her  in 
her  personal  capacity,  for  she  derives  no  advantage  or  convenience 
from  the  promise  here  made.  For  if  I  promise  generally  to  pay  upon 
request  what  I  was  liable  to  pay  upon  request  in  another  right,  I  derive 
no  advantage  or  convenience  from  this  promise,  and  therefore  there  is 
not  sufficient  consideration  for  it.  But  it  is  said  that  if  this  promise 
is  in  writing,  that  takes  away  the  necessity  of  a  consideration,  and 
obviates  the  objection  of  nudum  pactum,  for  that  cannot  be  where 
the    promise    i«   put   in   writing ;    and   that,    if  it   were   necessary  to 


SECT.   IL]  KANN    V.   HUGHES.  163 

support  the  promise  that  it  should  be  iu  writing,  it  will,  after  ver- 
dict, be  presumed  that  it  was  iu  writing ;  and  this  last  is  certainly  true  ; 
but  that  there  cannot  be  nudum  pactum  in  writing,  whatever  may  be 
the  rule  of  the  civil  law,  there  is  certainly  none  such  in  the  law  of 
England.  His  Lordship  observed,  upon  the  doctrine  of  nudum  pactum 
deUvered  by  Mr.  J.  Wihnot  in  the  case  of  Pillans  v.  Van  Mierop  and 
Hopkins,  3  Burr.  1663,  that  he  contradicted  himself,  and  was  also  con- 
tradicted by  Vinnius  in  his  comment  on  Justinian. 

All  contracts  are  by  the  laws  of  England  distinguished  into  agree- 
ments hy  specialty,  and  agreements  by  parol ;  nor  is  there  any  such 
third  class,  as  some  of  the  counsel  have  endeavored  to  maintain,  as 
contracts  in  writing.  If  they  be  merely  wiitten  and  not  specialties, 
thej^  are  parol,  and  a  consideration  must  be  proved.  But  it  is  said  that 
the  Statute  of  Frauds  has  taken  away  the  necessity  of  any  considera- 
tion in  this  case :  the  Statute  of  Frauds  was  made  for  the  relief  of 
personal  representatives  and  others,  and  did  not  intend  to  charge  them 
further  than  by  common  law  they  were  chargeable.  His  Lordship  here 
read  those  sections  of  that  statute  which  relate  to  the  present  subject. 
He  observed  that  the  words  were  merely  negative,  and  that  executors 
and  administrators  should  not  be  liable  out  of  their  own  estates,  unless 
the  agreement  upon  which  the  action  was  brought,  or  some  memoran- 
dum thereof,  was  in  writing  and  signed  by  the  party.  But  this  does 
not  prove  that  the  agreement  was  still  not  liable  to  be  tried  and  judged 
of  as  all  other  agreements  merely  in  writing  are  by  the  common  law, 
and  does  not  prove  the  converse  of  the  proposition,  that  when  in 
writing  the  part}'  must  be  at  all  events  hable.  He  here  observed  upon 
the  case  of  PiUans  v.  Van  Mierop,  in  Burr.,  and  the  case  of  Losh  v. 
Williamson,  Mich.  16  G.  3,  in  B.  R. ;  and  so  far  as  these  cases  went  on 
the  doctrine  of  nudum  pactum^  he  seemed  to  Intimate  that  they  were 
erroneous.  He  said  that  all  his  brothers  concurred  with  him  that  in 
this  case  there  was  not  a  sufficient  consideration  to  support  this  demand 
as  a  personal  demand  against  the  defendant,  and  that  its  being  now 
supposed  to  have  been  in  writing  makes  no  diiference.  The  conse- 
quence of  which  is  that  the  question  put  to  us  must  be  answered  in 
the  negative. 

And  the  judgment  in  the  Exchequer  Chamber  was  affirmed.  ^ 

*  In  7  Brown's  Parliament  Cases, 650  (vol.4  of  Tomlin's  ed.,  p. 27), the  argumenti 
ef  counsel  are  given.  Upon  the  question  of  consideration,  F.  Buller  and  J.  Dunning, 
for  the  plaintiffs  in  error,  argued  as  follows  :  — 

"  In  the  case  of  a  promise  in  writing,  which  this  must  be  taken  to  be  [and  which 
they  said  it  was  in  fact],  it  is  not  necessary  to  allege  any  consideration  in  the  decla- 
ration ;  but  if  it  were  necessary,  there  was  a  sufficient  consideration  for  the  promise 
appearing  upon  this  declaration.  In  reason,  there  is  little  or  no  difference  between  a 
contract  which  is  deliberately  reduced  into  writing,  and  signed  by  the  parties,  with- 
out seal,  and  a  contract  under  the  same  circumstances,  to  which  a  party  at  tiie  time 
of  signing  it  puts  a  seal,  or  his  finger  on  cold  wax.  In  the  case  of  a  deed,  i.  e.,  an 
histrument  under  seal,  it  must  be  admitted  that  no  consideration  is  nece.«sary ;  and 
in  the  year  1765  it  was  solemnly  adjudged  in  the  Court  of  lung's  Bencli,  Pillans  v. 
Van  Mierop,  3  Burr.  1663,  tliat  no  consideration  was  necessary  when  the  promise  wa» 


164  WILKINSON   V.   OLIYEIRA.  [CHAP.    I. 


B.  —  General  Principles. 


WILKINSON  V.  OLIVEIRA. 
In  the  Common  Pleas,  Jandart  27,  1835. 

[Reported  in  1  Bingham's  New  Cases,  490.] 

The  declaration  stated  that  divers  disputes  and  controversies  had 
arisen  between  the  defendant  and  divers  other  persons  respecting  the 
disposition  of  the  estate  and  effects  of  one  Dominick  Oliveira,  then  late 
deceased,  and  the  right  of  the  defendant  to  the  possession  of  any  and 
what  part  thereof ;  in  which  disputes  and  controversies  it  became  and 
was  necessary,  for  the  termination  thereof  in  favor  of  the  defendant, 
that  the  defendant  should  prove  that  the  said  Dominick  Oliveira  was, 
at  the  time  he  made  his  will,  and  at  the  time  of  his  death,  an  alien, 
and  a  native  of  Portugal ;  that  the  plaintiff  was  lawfully  possessed  of 
a  certain  writing  and  paper,  being  a  letter  written  by  the  said  Domi- 
nick OUveira  in  his  lifetime  to  the  plaintiff,  which  said  letter  showed, 
declared,  and  proved,  that  the  said  Dominick  Oliveira  was,  at  the  time 
he  made  his  will,  and  at  the  time  of  his  death,  an  alien  and  a  native  of 
Portugal ;  that  the  plaintiff,  at  the  request  of  the  defendant,  gave  to 
the  defendant  the  said  letter,  to  be  used  and  employed  by  the  defendant 
for  the  purpose  of  proving  that  the  said  Dominick  Oliveira  was  such 
alien  and  native  of  Portugal  at  the  time  he  made  his  will  and  at  the 
time  of  his  death ;  that  the  defendant  used  and  employed  the  said 
letter  for  the  said  purpose ;  and  that  b}'  means  of  the  said  letter  and 

reduced  into  writing.  That  opinion  has  since  been  recognized  in  the  same  court,  and 
several  judgments  founded  upon  it ;  all  which  judgments  must  be  subverted,  and 
what  was  there  conceived  to  be  settled  law  totally  overturned,  if  the  plaintiffs  in  tlii« 
cause  were  not  entitled  to  recover.  But  further :  if  a  consideration  were  necessary, 
a  sufficient  one  for  the  promise  appeared  upon  the  declaration  in  this  case.  The  de- 
fendant was  the  administratrix  of  John  Hughes,  she  had  effects  of  his  in  her  hands, 
she  was  liable  to  be  called  upon  by  the  plaintiffs  in  an  action,  to  show  to  what 
amount  she  had  effects,  and  how  she  had  applied  them ;  and  under  these  circum- 
stances she  promised  to  pay  the  demand  which  the  plaintiffs  had  against  her.  But 
it  was  said,  that  it  did  not  appear  on  the  declaration  that  she  had  effects  of  John 
Hughes  sufficient  to  pay  all  his  debts.  To  what  amount  she  had  effects,  or  what 
debts  were  due  from  Hughes  at  his  death,  was  known  to  the  defendant  only,  and  not 
to  the  plaintiffs.  They  applied  to  the  person  against  whom  they  had  a  right  of 
action ;  she  promised  to  pay  them,  and  imder  that  promise  they  rested  satisfied 
This  promise,  if  it  did  not  import  an  admission  of  effects,  must  naturally  be  under- 
stood to  mean  that  the  defendant  would  pay  the  debt  whether  she  had  effects  or 
not ;  and  if  it  wa«  not  bo  meant,  it  could  only  be  intended  to  amuse,  mislead,  ■a' 
deceive  the  plaintiffs.  And  after  such  a  promise  the  detenaani  ougnt  not  lo  oe  pc" 
mitted  to  say  that  she  had  not  sufficient  assets  to  pay  this  debt." 


SECT,    n.]  WILKINSON   V.    OLIVEIRA.  165 

of  tlie  matters  tnerein  contained,  the  defendant  was  enabled  to  and  did 
cause  the  said  disputes  and  controversies  to  be  determined  in  favor  of 
him,  the  defendant ;  and  did,  by  means  of  the  said  letter  and  of  the 
matters  therein  contained,  become  lawfuUj'^  possessed  of  and  acquired 
a  large  portion  of  the  estate  and  effects  of  the  said  Dominick  Qliveira, 
of  great  value,  to  wit,  of  the  value  of  100,000Z.  &c.  And  thereupon, 
to  wit,  on,  &c.,  at,  &c.,  in  consideration  thereof^  and  that  the  plaintiff, 
at  the  special  instance  and  request  of  the  defendant,  had  then  and  there 
given  the  said  letter  to  the  defendant,  the  defendant  then  and  there 
undertook  and  faithfully  promised  the  plaintiff-to  give  him,  the  plaintiff, 
a  certain  sum  of  mone}',  to  wit,  the  sum  of  lOOOZ. 

Breach :  refusal  to  give  the  IQQO/.  in  conformity  with  the  promise. 

T'lea  :  that  the"de^hdant  was  not,  by  means  of  the  letter^  enaDiecTto, 
and  did  not  by  means  thereof,  cause  the  said  disputes  to  be  determined 
in  favor  of  the  defendant ;  and  that  the  defendant  did  not,  by  means  of 
the  letter,  become  possessed  of  a  portion  of  the  estate  of  Dominick 
Oliveira,  of  the  value  of  100,000^. 

Demurrer:  for  putting  in  issue  matter  not  properly  issuable,  and 
for  not  den}'ing  or  confessing  and  avoiding  the  breach  of  promise. 
Joinder. 

Kelly,  for  the  plaintiff,  was  called  upon  by  the  court  to  support  the 
declaration.  The  consideration,  though  past,  is  alleged  to  have  arisen 
at  the  defendant's  request,  which  renders  it  sufficient  to  impart  validity 
to  the  defendant's  promise  ;  and  though  the  letter  in  question  is  alleged 
to  have  been  given  to  the  defendant,  the  statement  amounts  to  this : 
that  in  consideration  the  plaintiff  had  put  the  defendant  in  possession 
of  a  document  by  which  the  defendant  was  enabled  to  recover  100,000/., 
the  defendant  undertook  to  give  the  plaintiff  in  return  1000/.  For 
such  an  undertaking  the  delivery  of  the  document  was  ample  consider- 
ation. 

lalfourd,  Serjt.,  contra,  contended  that,  taking  the  whole  declara- 
tion together,  it  appeared  plainly  the  letter  had  l>een  handed  to  the 
defendant  b}^  way  of  a  spontaneous  gift ;  and  such  gift  was  no  consid- 
eration for  a  promise  to  pay. 

TiNDAL,  C.  J.  What  would  you  sa}'  to  the  case  of  a  man  who, 
entering  a  shop,  should  say,  "  I'll  give  you  10/.  for  such  an  article?" 
Here  the  word  "  give  "  is  used  on  both  sides.  It  is  a  gift  upon  a  mutual 
consideration. 

Peb  Curiam.     There  must  be  Judgment  for  the  plaintiff . 


OiJ  Uiamt^df^ 


166  BAINBELDGE   V.    FIRMSTONE.  [CHAP.    I. 


BAINBRIDGE   v.    FIRMSTONE. 
In  the  Queen's  Bench,  November  2,  1838. 

[Reported  m  8  Adolphus  4-  Ellis,  743.) 

AssDMPSiT.  Tlie  declaration  stated  that,  whereas  heretofore,  to  wit, 
&c.,  in  consideration  that  plaiutilf,  at  the  request  of  defendant,  had  then 
consented  to  allow  defendant  to  weigh  divers,  to  wit,  two  boilers  of  the 
plaintiff,  of  gi-eat  value,  (fee,  defendant  promised  that  he  would,  within 
a  reasonable  time  after  the  said  weighing  was  effected,  leave  and  give 
up  the  boilers  in  as  perfect  and  complete  a  condition,  and  as  fit  for  use 
by  plaintiff",  as  the  same  were  in  at  the  time  of  the  consent  so  given  by 
plaintiff;  and  that  although  in  pursuance  of  the  consent  so  given, 
defendant,  to  wit,  on,  &c.,  did  weigh  the  same  boilers,  yet  defendant 
did  not,  nor  would,  within  a  reasonable  time  after  the  said  weighing 
was  effected,  leave  and  give  up  the  boilers  in  as  perfect,  &c.,  but  wholly 
neglected  and  refused  so  to  do,  although  a  reasonable  time  for  that 
purpose  had  elapsed  before  the  commencement  of  this  suit ;  and,  on 
the  contrary  thereof,  defendant  afterwards,  to  wit,  on,  &c.,  took  the 
said  boilers  to  pieces,  and  did  not  put  the  same  together  again,  but  left 
the  same  in  a  detached  and  divided  condition,  and  in  many  different 
pieces,  whereby  plaintiff  hath  been  put  to  great  trouble,  «S:c.  Plea : 
non  assumpsit. 

On  the  trial  before  Lord  Denman,  C.  J.,  at  the  London  Sittings  after 
last  Trinity  Term,  a  verdict  was  found  for  the  plaintiff". 

John  Bayley  now  moved  in  arrest  of  judgment.  The  declaration 
shows  no  consideration.  There  should  have  been  either  detriment  to 
the  plaintiff,  or  benefit  to  the  defendant.  1  Selwyn's  N.  P.^  45.  It 
does  not  appear  that  the  defendant  was  to  receive  any  remuneration. 
Besides,  the  word  "  weigh  "  is  ambiguous. 

Lord  Denman,  C.  J.  It  seems  to  me  that  the  declaration  is  well 
enough.  The  defendant  had  some  reason  for  wishing  to  weigh  the 
boilers ;  and  he  could  do  so  only  by  obtaining  permission  from  the 
plaintiff,  which  he  did  obtain  by  promising  to  return  them  in  good  con- 
dition. "We  need  not  inquire  what  benefit  he  expected  to  derive.  The 
plaintiff  might  have  given  or  refused  leave. 

Patteson,  J.  The  consideration  is,  that  the  plaintiff,  at  the  defend- 
ant's request,  had  consented  to  allow  the  defendant  to  weigh  the  boilers. 
I  suppose  the  defendant  thought  he  had  some  benefit ;  at  any  rate  there 
is  a  detriment  to  the  plaintiff  from  his  parting  with  the  possession  foi 
even  so  short  a  time. 

Williams  and  Coleridge,  JJ.,  concurred.  R^  refuted. 

1  9th  ecBt, 


SECT,   n.]  HATGH   V.  BROOKS.  167 

HAIGH   AND   Another   v.   BROOKS. 

In  the  Queen's  Bench,  June  6,  1839. 

[Reported  in  10  Adolphus  ^  Ellis,  309.] 

BROOKS  V.   HAIGH  and  Anotheb. 
In  the  Exchequer  Chamber,  June  29,  1840. 

[Reported  in  10  Adolphus  ^  FAlis,  323.] 

Assumpsit.  The  first  count  of  the  declaration  stated  that  heretofore, 
to  wit,  on  &c.,  in  consideration  that  the  said  plaintiffs,  at  the  special 
instance  and  request  of  the  said  defendant,  would  give  up  to  him  a  cer- 
tain guarant}'  of  10,000/.,  on  behalf  of  Messrs.  John  Lees  &  Sons, 
Manchester,  then  held  by  the  said  plaintiffs,  he  the  said  defendant 
undertook,  and  then  faithfully  promised  the  said  plaintiffs,  to  see  certain 
bills,  accepted  by  the  said  Messrs.  John  Lees  &  Sons,  paid  at  maturity  ; 
that  is  to  say,  a  certain  bill  of  exchange,  bearing  date,  &c.,  drawn  by 
plaintifis  upon  and  accepted  b}'  the  said  Lees  &  Sons,  payable  three 
months  after  date,  for  3466/.  13s.  7rf.,  and  made  payable  at,  dec.  ;  and 
also  a  certain  other  bill,  &e.,  describing  two  other  bills  for  3000/.  and 
3200/.,  drawn  by  plaintifis  upon  and  accepted  by  Lees  &  Sons,  and 
made  payable  at,  &;c.  Averment :  that  plamtiffs,  rel}ing  on  defend- 
ant's said  promise,  did  then,  to  wit,  on,  &c.,  give  up  to  the  said 
defendant  the  said  guaranty  of  10,000/.  Breach,  non-payment  of  the 
bills,  when  they  afterwards  came  to  maturity,  by  Lees  &  Sons,  or  the 
parties  at  whose  houses  the  bills  respectively  were  made  payable,  or  by 
defendant,  or  any  other  person,  «fec. 

Third  plea  to  the  first  count :  "  That  the  said  supposed  guaranty  of 
10,000/.,  in  consideration  of  the  giving  up  whereof  the  defendant  made 
such  supposed  promise  and  undertaking  as  therein  mentioned,  and 
which  guaranty  was  so  given  up  to  the  said  defendant  as  therein  men- 
tioned, was  a,  special  promise  to  answer  the  said  plaintifis  for  the  debt 
and  default  of  other  persons,  to  wit,  the  said  Messrs.  John  Lees  & 
Sons  in  the  said  first  count  mentioned  ;  and  that  no  agreement  in 
respect  of,  or  relating  to,  the  said  supposed  guaranty  or  special  prom- 
ise, or  any  memorandum  or  note  thereof,  wherein  any  sufficient  con- 
sideration for  the  said  guarant}'  or  special  promise  was  stated  or  shown, 
was  in  writing  and  signed  by  the  said  defendant,  or  an}'  other  person 
by  him  thereunto  lawfully  authorized.  And  the  said  defendant  further 
saith  that  the  said  supposed  guarant}-,  in  consideration  of  the  giving 
up  whereof  the  defendant  made  the  said  supposed  promise  and  under- 
taking in  the  said  first  count  mentioned,  and  which  was  so  given  up  ae 
therein  mentioned,  was  and  is  contained  in  a  certain  memorandum  in 
writing,  signed  by  the  defendant,  and  which  was  and  is  in  the  words 
and  figures  and  to  the  effect  following,  that  is  to  say  :  — 


168  HAIGH  V.   BROOKS.  [CHAP.    I. 

Manchesteb,  4th  Februarj,  1837. 

MkPSKS.    HaIGH    &    FUANCETS. 

Gknt.,  —  In  consideration  of  your  being  iu  advance  to  Messrs.  John  Lees  & 
Sons  in  the  sum  of  10,000/.  for  the  purchase  of  cotton,  I  do  hereby  give  you 
my  guaranty  for  that  amo\int  (say  10,000/.)  on  their  behalf. 

John  Brooks. 

And  that  there  was  no  other  agreement  or  memorandum  ornote  thereof, 
in  respect  of,  or  relating  to,  the  said  lust-mentioned  supposed  guaranty 
or  special  promise  ;  wherefore  the  said  defendant  says  tliat  the  supposed 
guaranty,  in  consideration  whereof  the  said  defendant  made  the  said 
supposed  promise  and  undertaking  in  the  said  first  count  mentioned, 
was  and  is  void  and  of  no  effect ;  and,  therefore,  that  the  said  sup- 
posed promise  and  undertaking  in  the  said  first  count  mentioned  was 
and  is  void  and  of  no  eftect."     Verification. 

Demurrer:  assigning  for  cause,  '•'■  that  it  is  admitted  by  the  plea  that 
the  memorandum,  the  giving  up  of  which  was  the  consideration  of  the 
guaranty  in  the  said  declaration  mentioned,  was  actually  given  up  to 
the  said  defendant  by  the  said  plaintiffs,  and  the  consideration  was, 
therefore,  executed  by  the  said  plaintiffs;  and  that,  even  if  the  origi 
nal  memorandum  was  not  binding  in  point  of  law,  the  giving  up  was 
a  sufficient  consideration  for  the  promise  in  the  declaration  mentioned." 
Joinder.     The  demurrer  was  argued  in  last  Hilary  Term. 

Sir  W.  W.  Follett  for  the  plaintiffs. 

Sir  J.  Campbell,  Attorney-General,  contra.    - 

Lord  Denman,  C.  J.,  in  this  Term  (June  6th)  delivered  the  judg- 
ment of  the  court. 

It  was  argued  for  the  defendant  that  this  guaranty  is  of  no  force, 
because  the  fact  of  the  plaintiffs  being  already  in  advance  to  Lees  could 
form  no  consideration  for  the  defendant's  promise  to  guarantee  to  the 
plaintiffs  the  payment  of  Lees's  acceptances.  In  the  first  place,  this  is 
by  no  means  clear.  That  "  being  in  advance  "  must  necessarily  mean 
to  assert  that  he  was  in  advance  at  the  time  of  giving  the  guaranty,  is 
an  assertion  open  to  argument.  It  may  possibly  have  been  intended  as 
prospective.  If  the  phrase  had  been  "  in  consideration  of  your  becom- 
ing in  advance,"  or  "  on  condition  of  your  being  in  advance,"  such 
would  have  been  the  clear  import.^  As  it  is,  nobody  can  doubt  that 
the  defendant  took  a  great  interest  in  the  affairs  of  Messrs.  Lees,  or 
believe  that  the  plaintiffs  had  not  come  under  the  advance  mentioned 
at  the  defendant's  request.  Here  is  then  suflScient  doubt  to  make  it 
worth  the  defendant's  while  to  possess  himself  of  the  guaranty  ;  and,  if 
that  be  so,  we  have  no  concern  with  the  adequacy  or  inadequacy  of  the 
price  paid  or  promised  for  it. 

1  See  the  discussion  on  the  words  "for  giving  his  vote,"  in  Lord  Huntingtower  w. 
Gardiner,  1  B.  &  C.  297. 


SECT,   n.]  BROOKS   V.   HAIGH.  169 

But  we  are  by  no  means  prepared  to  say  that  any  circumstances 
short  of  the  imputation  of  fraud  in  fact  could  entitle  us  to  hold  that 
a  party  was  not  bound  by  a  promise  made  upon  any  consideration 
which  could  be  valuable  ;  while  of  its  being  so,  the  promise  by  which 
it  was  obtained  from  the  holder  of  it  must  alwa\-s  afford  some  proof. 

Here,  whether  or  not  the  guaranty  could  have  been  available  within 
the  doctrine  of  Wain  v.  Warlters,^  the  plaintiffs  were  induced  b}'  thf 
defendant's  promise  to  part  with  something  which  they  might  have 
kept,  and  the  defendant  obtained  what  he  desired  by  means  of  that 
promise.  Both  being  free  and  able  to  judge  for  themselves,  how  can 
the  defendant  be  justified  in  breaking  this  promise,  by  discovering 
afterwards  that  the  thing  in  consideration  of  which  he  gave  it  did  not 
possess  that  value  which  he  supposed  to  belong  to  it  ?  It  cannot  be 
ascertained  that  that  value  was  what  he  most  regarded  :  he  may  have 
had  other  objects  and  motives,  and  of  their  weight  he  was  the  only 
judge.  We  therefore  think  the  plea  bad ;  and  the  demurrer  must 
prevail.  Judgment  for  the  plaintiffs. 

The  plaintiffs  having  signed  judgment,  error  was  brought  in  the 
Exchequer  Chamber. 

The  writ  of  error  set  out  the  pleadings,  of  which  the  material  part 
is  stated  in  the  preceding  report.  The  errors  assigned  were,  that  the 
declaration  is  insufficient,  and  that  the  judgment  was  for  the  plaintiffs 
below,  whereas  it  ought  to  have  been  for  the  defendant.  The  writ  of 
error  was  argued  in  Trinity  Vacation,  June  22d,  1840,  before  Lord 
Abinger,  C.  B.,  Bosanqcet,  Coltman,  and  Maule,  JJ.,  and  Alder- 
son  and  RoLFE,  BB. 

Sir  J.  Campbell^  Attorney-General,  for  the  plaintiff  in  error.  .  .  . 

Sir  W.  W.  Follett,  contra. 

Lord  Abinger,  C.  B.,  in  the  same  Vacation  (June  29th)  delivered 
the  judgment  of  the  Court. 

In  the  case  of  Brooks  v.  Haigh  the  judgment  of  the  Court  is  to  afiirm 
the  judgment  of  the  Court  of  Queen's  Bench. 

It  is  the  opinion  of  all  the  Court  that  there  was  in  the  guaranty  an 
ambiguity  that  might  be  explained  by  evidence,  so  as  to  make  it  a  valid 
contract ;  and  therefore  this  was  a  sufficient  consideration  for  the  prom- 
ise declared  upon. 

It  is  also  the  opinion  of  all  the  Court,  with  the  exception  of  my 
brother  Madle,  who  entertained  some  doubt  on  the  question,  that  the 
words  both  of  the  declaration  and  the  plea  import  that  the  paper  on 
which  the  guaranty  was  written  was  given  up  ;  and  that  the  actual  sur- 
render of  the  possession  of  the  paper  to  the  defendant  was  a  sufficient 
consideration  without  reference  to  its  contents. 

Judgment  affirmed? 

1  5  East,  10. 

2  A  portion  of  the  case  is  omitted. 

"The  adequacy  of  the  cousideration  is  for  the  parties  to  consider  at  the  time 
of  making  the  agreement,  not  for  the  court   when  it   is  sought  to   be  enforced." 


170  SCHNELL  V.   NELL.  [CHAP.   1. 

SCHNELL  V.  NELL. 
Indiana  Supreme  Court,  November  Term,  1861. 

[Reported  in  17  Indiana,  29.] 

Perkins,  J.  Action  by  J.  B.  Nell  against  Zacharias  Schnell,  upon 
the  following  instrument :  — 

"This  agreement,  entered  into  this  13th  da}-  of  February',  1856,  be- 
tween Zach.  Schnell,  of  Indianapolis,  Marion  Count}',  State  of  Indiana, 
as  party  of  the  first  part,  and  J.  B.  Nell,  of  the  same  place,  Wendelin 
Lorenz,  of  Stilesville,  Hendricks  County,  State  of  Indiana,  and  Donata 
Lorenz,  of  Frickinger,  Grand  Duchy  of  Baden,  Germany,  as  parties  of 
the  second  part,  witnesseth  :  The  said  Zacharias  Schnell  agrees  as  fol- 
lows :  whereas  his  wife,  Theresa  Schnell,  now  deceased,  has  made  a  last 
will  and  testament,  in  which,  among  other  provisions,  it  was  ordained 
that  every  one  of  the  above  named  second  parties  should  receive  the 
sura  of  S200;  and  whereas  the  said  provisions  of  the  will  must  remain 
a  nullity,  for  the  reason  that  no  property,  real  or  personal,  was  in  the 
possession  of  the  said  Theresa  Schnell,  deceased,  in  her  own  name,  at 
the  time  of  her  death,  and  all  property  held  by  Zacharias  and  Theresa 
Schnell  jointly,  therefore  reverts  to  her  husband  ;  and  whereas  the  said 
Theresa  Schnell  has  also  been  a  dutiful  and  loving  wife  to  the  said 
Zach.  Schnell,  and  has  materially  aided  him  in  the  acquisition  of  all 
property,  real  and  personal,  now  possessed  by  him ;  for,  and  in  con- 
sideration of  all  this,  and  the  love  and  respect  he  bears  to  his  wife ; 
and,  furthermore,  in  consideration  of  one  cent,  received  by  him  of  the 
second  parties,  he,  the  said  Zach.  Schnell,  agrees  to  pay  the  above 
named  sums  of  money  to  the  parties  of  the  second  part,  to  wit :  $200 
to  the  said  J.  B.  Nell ;  $200  to  the  said  Wendelin  Lorenz  ;  and  $200 
to  the  said  Donata  Lorenz,  in  the  following  instalments,  viz.,  $200  in 
one  year  from  the  date  of  these  presents  ;  $200  in  two  years,  and  $200 
in  three  years;  to  be  divided  between  the  parties  in  equal  portions  of 
$66f  each  year,  or  as  they  may  agree,  till  each  one  has  received  his 
full  sum  of  $200. 

"  And  the  said  parties  of  the  second  part,  for,  and  in  consideration 
of  this,  agree  to  pay  the  above  named  sum  of  money  [one  cent],  and  to 
deliver  up  to  said  Schnell,  and  abstain  from  collecting  any  real  or  sup- 
posed claims  upon  him  or  his  estate,  arising  from  the  said  last  will  and 
testament  of  the  said  Theresa  Schnell,  deceased. 

Blackburn,  J.,  in  Bolton  r.  Madden,  L.  R.  9  Q.  B.  55.  See  also  Wolford  v.  Powers,  85 
Ind.  294 ;  Colt  v.  McConnell,  116  lud.  249  ;  Mullen  v.  Hawkins,  141  Ind.  363  ;  Train 
V.  Gold,  5  Pick.  380,  .384;  Wilton  v.  Eaton,  127  Mass.  174;  Wliitney  v.  Clary,  145 
Mass.  156;  Daily  v.  Minniek,  91  N.  W.  Rep.  913  (Iowa)  ;  Williams  y.  Jensen,  75  Mo. 
681  ;  Perkins  v.  Clay,  54  N.  H.  518 ;  Traphagen's  Ex.  v.  Voorhees,  44  N.  J.  Eq.  21  ; 
Worth  V.  Case,  42  N.  Y.  362  ;  Earl  v.  Peck,  64  N.  Y.  569  ;  Cowee  v.  Cornell,  75  N.  Y. 
91  ;  Judy  V.  Louderman,  48  Ohio  St.  562 ;  Cumming's  Appeal,  67  Pa.  404 ;  Giddings 
V.  Giddings's  Adm.,  51  Vt.  227. 


SECT.   II.]  SCHNELL   V.    NELL.  171 

"  In  witness  whereof,  the  said  parties  have,  on  this  13th  day  of  Feb- 
ruary, 1856,  set  hereunto  their  hands  and  seals. 

"  Zacharias  Schnell,  [seal.] 
"J.  B.  Nell,  [seal.] 

"  Wen.  Lokenz."  [seal.] 

The  complaint  contained  no  averment  of  a  consideration  for  the  in- 
strument, outside  of  those  expressed  in  it ;  and  did  not  aver  that  the 
one  cent  agreed  to  be  paid  had  been  paid  or  tendered. 

A  demurrer  to  the  complaint  was  overruled. 

The  defendant  answered,  that  the  instrument  sued  on  was  given  for 
no  consideration  whatever. 

He  further  answered,  that  it  was  given  for  no  consideration,  because 
his  said  wife,  Theresa,  at  the  time  she  made  the  will  mentioned,  and  at 
the  time  of  her  death,  owned,  neither  separately,  nor  jointly  with  her 
husband,  or  any  one  else  (except  so  far  as  the  law  gave  her  an  interest 
m  her  husband's  property),  any  property,  real  or  personal,  &c. 

The  will  is  copied  into  the  record,  but  need  not  be  into  this  opinion. 

The  Court  sustained  a  demurrer  to  these  answers,  evidently  on  the 
ground  that  they  were  regarded  as  contradicting  the  instrument  sued 
on,  which  particularly  set  out  the  considerations  upon  which  it  was  ex- 
ecuted. But  the  instrument  is  latently  ambiguous  on  this  point.  See 
Ind.  Dig.,  p.  110. 

The  case  turned  below,  and  must  turn  here,  upon  the  question 
whether  the  instrument  sued  on  does  express  a  consideration  sufficient 
to  give  it  legal  obligation,  as  against  Zacharias  Schnell.  It  specifies 
three  distinct  considerations  for  his  promise  to  pay  $600  : 

1.  A  promise,  on  the  part  of  the  plaintiffs,  to  pa}'  him  one  cent. 

2.  The  love  and  affection  he  bore  his  deceased  wife,  and  the  fact 
that  she  had  done  her  part,  as  his  wife,  in  the  acquisition  of  property. 

3.  The  fact  that  she  had  expressed  her  desire,  in  the  form  of  an  in- 
operative will,  that  the  persons  named  therein  should  have  the  sums  of 
money  specified. 

The  consideration  of  one  cent  will  not  support  the  promise  of  Schnell. 
It  is  true,  that  as  a  general  proposition,  inadequacy  of  consideration 
will  not  vitiate  an  agreement.  Baker  v.  Roberts,  14  Ind.  552.  But 
this  doctrine  does  not  apply  to  a  mere  exchange  of  sums  of  mone}',  of 
coin,  whose  value  is  exactly  fixed, ^  but  to  the  exchange  of  something  of, 
in  itself,  indeterminate  value,  for  money,  or  perhaps,  for  some  other 
thing  of  indeterminate  value.  In  this  case,  had  the  one  cent  men- 
tioned been  some  particular  one  cent,  a  famil}'  piece,  or  ancient,  re- 
markable coin,  possessing  an  indeterminate  value,  extrinsic  from  its 
simple  money  value,  a  different  view  might  be  taken.  As  it  is,  the 
mere  promise  to  pay  six  hundred  dollars  for  one  cent,  even  had  the 
portion  of  that  cent  due  from  the  plaintiff  been  tendered,  is  an  uncon- 
scionable contract,  void,  at  first  blush,  upon  its  face,  if  it  be  regarded 

1  Wolford  V.  Powers,  85  Ind.  294,  301  ;  Shepard  v.  Rhodes,  7  R.  I.  470,  ace. 


172  HARRISON   V.   CAGE.  [CHAP.   1. 

as  an  earnest  one.  Hardesty  v.  Smith,  3  Ind.  39.  The  consideration 
of  one  cent  is,  plainly,  in  this  case,  merely  nominal,  and  intended  to  be 
so.  As  the  will  and  testament  of  Schnell's  wife  imposed  no  legal  obli- 
gation upon  him  to  discharge  her  bequests  out  of  his  property,  and  as 
she  had  none  of  her  own,  his  promise  to  discharge  them  was  not  legally 
binding  upon  him,  on  that  ground.  A  moral  consideration,  only,  will 
not  support  a  promise.  Ind.  Dig.,  p.  13.  And  for  the  same  reason,  a 
valid  consideration  for  his  promise  cannot  be  found  in  the  fact  of  a 
compromise  of  a  disputed  claim  ;  for  where  such  claim  is  legally  ground- 
less, a  promise  upon, a  compromise  of  it,  or  of  a  suit  upon  it,  is  not 
legall}-  binding.  Spahr  v.  HoUingshead,  8  Blackf.  415.  There  was  no 
mistake  of  law  or  fact  in  this  case,  as  the  agreement  admits  the  will 
inoperative  and  void.  The  promise  was  simplj'  one  to  make  a  gift. 
The  past  services  of  his  wife,  and  the  love  and  affection  he  had  borne 
her,  are  objectionable  as  legal  considerations  for  Schnell's  promise,  on 
two  grounds:  1.  They  are  past  considerations.  Ind.  Dig.,  p.  13. 
2.  The  fact  that  Schnell  loved  his  wife,  and  that  she  had  been  indus- 
trious, constituted  no  consideration  for  his  promise  to  pay  J.  B.  Nell, 
and  the  Lorenzes,  a  sum  of  money.  Whether,  if  his  wife,  in  her  life- 
time, had  made  a  bargain  with  Schnell,  that,  in  consideration  of  his 
promising  to  pa}',  after  her  death,  to  the  persons  named,  a  sum  of 
money,  she  would  be  industrious,  and  worth}'  of  his  affection,  such  a 
promise  would  have  been  valid  and  consistent  with  public  policy,  we 
need  not  decide.  Nor  is  the  fact  that  Schnell  now  venerates  the  mem- 
ory of  his  deceased  wife  a  legal  consideration  for  a  promise  to  pay  an}' 
third  person  money. 

The  instrument  sued  on,  interpreted  in  the  light  of  the  facts  alleged 
in  the  second  paragraph  of  the  answer,  will  not  support  an  action. 
The  demurrer  to  the  answer  should  have  been  overruled.  See  Steven- 
son V.  Druley,  4  Ind.  519. 


^  HARRISON  V.   CAGE  and   his  Wife. 


(V^ 


Ik  the  King's  Bench,  Michaelmas  Term,  1698. 

[Reported  in  6  Modem,  411.] 


This  is  an  action  on  the  case,  wherein  the  plaintiff"  declares  that,  in 
consideration  the  plaintiff  would  mairy  the  defendant,  the  defendant 
promised  to  marry  him,  and  that  he  had  offered  himself  to  her,  but  that 
she  refused  him,  and  had  married  the  other  defendant. 

First.  This  action  does  not  lie.  Indeed  it  might  be  otherwise  in  the 
case  of  a  woman  ;  for  a  marriage  is  an  advancement  to  a  woman,  but^ 
not  to  a  man,  as  appears  in  Anne  Davis's  Case,^  and  in  the  case  of  a 

1  4  Rep,  16  6. 


SECT,   n.]  HARRISON   V.   CAGE.  173 

feoffment  cau^a  matrimonii  prcetocuU,  which  shows  that  there  is  a  gi'eat 
difference  between  the  two  cases  of  a  man  and  a  woman  ;  for  it  is  a 
breach  of  a  woman's  modest}'  to  promise  a  man  to  marr}'  him,  but  it  is 
not  for  a  man  to  promise  a  woman  to  marry  her. 

Secondly.  Here  is  no  time  laid  when  this  marriage  was  to  be  ;  and  it 
may  be  still. 

Thirdly.  The  consideration  is  ill ;  it  is  no  more  than  "  I  will  be  your 
husband  if  you  will  be  my  wife  ; "  it  is  no  more  than  this,  "  I  will  be 
your  master,  and  j'ou  shall  be  my  servant." 

Fourth!}'.  It  is  not  reasonable  that  a  young  woman  should  be  caught 
into  a  promise. 

£  contra.  The  action  very  well  lies  ;  and  certainly  maniage  is  as 
much  advancement  to  a  man  as  it  is  to  a  woman.  And  I  am  sorr\ 
that  the  counsel  on  the  other  side  has  so  mean  an  opinion  of  a  good 
woman  as  to  think  that  she  is  no  advancement  to  a  man.  We  say 
that  we  have  offered  ourselves,  and  that  she  did  refuse  us ;  and  though 
we  do  not  mention  the  portion,  it  is  well  enough. 

Holt,  C.  J.  Wh}'  should  not  a  woman  be  bound  by  her  promise  as 
well  as  a  man  is  bound  bj^  his  ?  Either  all  is  a  nudum  pactum,  or  else 
the  one  promise  is  as  good  as  the  other.  You  agree  a  woman  shall 
have  an  action ;  now  what  is  the  consideration  of  a  man's  promise  ? 
Why,  it  is  the  woman's.  Then  wh}'  should  not  his  promise  be  a  good 
consideration  for  her  promise,  as  well  as  her  promise  is  a  good  consid- 
eration for  his  ?  There  is  the  same  parit}'  of  reason  in  the  one  case  as 
there  is  in  the  other,  and  the  consideration  is  mutual.  As  for  the  case 
of  the  matrimonii  proslocuti,  that  goes  upon  another  reason,  there  being 
a  feoffment  of  lands  and  a  condition  annexed  to  it ;  but  this  here  is 
upon  a  contract.  In  the  ecclesiastical  court  he  might  have  compelled 
a  perfoimance  of  this  promise  ;  but  here,  indeed,  she  has  disabled  her- 
self, for  she  has  mamed  another.  Then  you  might  have  given  in  evi- 
dence an}'  lawful  impediment  upon  this  action  ;  as  that  the  parties  were 
within  the  Levitical  degrees,  &c.,  for  this  makes  the  promise  void  ;  but 
it  is  otherwise  of  a  precontract. 

TuRTON,  J.  There  is  as  much  reason  for  the  one  as  for  the  other  ; 
and  Halcomb's  Case  in  Vaughan  is  plain. 

RoKEBT,  J.  If  a  man  be  scandalized  by  words  per  quod  matrimonium 
amisit,  a  good  action  lies  ;  and  why  not  in  this  case? 

TuRTON,  J.     This  action  is  grounded  on  mutual  promises. 

Holt,  C.  J.  The  man  is  bound  in  respect  of  the  woman's  promise; 
if  she  make  none,  he  is  not  bound  by  his  promise,  and  then  it  is  a 
midum  pactum  ;  so  that  her  promise  must  be  good  to  make  his  signify 
any  thing  to  her ;  and  then,  if  her  promise  be  good,  why  should  not  a 
good  action  he  upon  it? 

JudgmerUfor  the  plaintiff 


174  HOLT    V.    WARD   CLAREXCIEUX.  [CHAP.    I. 


HOLT  V.   WARD   CLARENCIEUX. 

In  the  King's  Bench,  Trinitt  Term,  1732. 

[Reported  in  2  Strange,  987.] 

The  plaintiff  declared  that  it  was  mutually  agreed  between  the  plain- 
tiff and  defendant  that  they  should  marry  at  a  future  day  which  is  past, 
and  that,  in  consideration  of  each  other's  promise,  each  engaged  to  the 
other ;  notwithstanding  which  the  defendant  did  not  marry  the  plaintiff, 
but  had  married  another,  which  she  laA's  to  her  damage  of  4,000^. 

The  defendant,  with  leave  of  the  Court,  pleaded  double ;  viz.,  n(m 
assumpsit,  and  that  the  plaintiff,  at  the  time  of  the  promise,  was  an 
infant  of  fifteen  years  of  age. 

The  plaintiff  joins  issue  on  the  non  assumpsit,  and  a  verdict  is  found 
for  her,  with  2,000Z.  damages.  And,  as  to  the  plea  of  infancy,  de- 
murred. 

This  cause  was  several  times  argued  at  the  bar :  1 .  By  Mr.  Strange 
for  the  plaintiff,  and  Serjeant  Chappie  for  the  defendant ;  when  the 
Court  inclined  strongly  with  the  plaintiff,  because,  though  the  defendant 
would  not  have  the  same  remed}^  against  her  by  action  for  damages, 
yet  they  thought  he  might  have  some  remedj',  viz.,  by  suit  in  the 
ecclesiastical  court  to  compel  a  performance,  the  plaintiff  being  of  the 
age  of  consent ;  and  that  would  be  a  sufficient  consideration.  And 
therefore  appointed  an  argument  bj'  civilians,  to  see  what  tJieir  law 
would  determine  in  such  a  case. 

Upon  the  arguments  of  the  civilians,  no  instance  could  be  shown 
wherein  the}'  had  compelled  the  performance  of  a  minor's  contract. 
And  they  who  argued  for  the  defendant  strongly  insisted  that,  in  the 
case  of  a  contract  per  verba  de  futuro  (as  this  was) ,  there  was  no 
remed}-,  even  against  a  person  of  full  age,  in  the  spiritual  court ;  but 
only  an  admonition.  And  the  only  reason  why  they  hold  jurisdiction 
In  the  case  of  a  contract  per  verba  de  prcesenti  is  because  that  is  looked 
upon  amongst  them  to  be  ipsum  matrimonium,  and  the}'  only  decree  the 
formality  of  a  solemnization  in  the  face  of  the  church. 

After  their  arguments  it  was  spoken  to  a  fourth  time  by  Mr.  Reeve  a.id 
Serjeant  Eyre.  And  now  this  Term  the  Chief  Justice  deUvered  the  reso- 
lution of  the  Court. 

The  objection  in  this  case  is,  that,  the  plaintiff  not  being  bound 
equally  with  the  defendant,  this  is  nudum  pactum,  and  the  defendant 
cannot  be  charged  in  this  action.  Formerly  it  was  made  a  doubt  by 
my  Lord  Vaughan  whether_aiiy^action  could  be  maintained  on  mutual 
promisf^-tooDarry ;  but  that  is  now  a  point  noTtoTTe  disputed.  And 
as  to  the  present  case,  we  should  have  had  no- difficulty  in  gi\nng  judg- 


SECT,   n.]  ATWELL   V.   JENKINS.  175 

ment  for  the  plaintiff,  if  we  could  have  been  satisfied  by  the  arguaents 
of  the  civilians  that,  as  the  plaintiff  was  of  the  age  of  consent,  any 
remedy,  though  not  by  way  of  action  for  damages,  could  be  had  against 
her.  But  since  they  seem  to  have  had  no  precedent  in  the  case,  we 
must  consider  it  upon  the  foot  of  the  common  law.  And  upon  that 
the  single  question  is,  whether  jMs  contract^  as  against_Jiie_j)laiiitig^ 
was  absolutely  void.  ZAnd  we^xe  all  of  opinion  that  this  contrac  t  in 
not  void,  but  only  voidable  at  the  election  of  the  infant ;  and  as  to  the. 
person  of  full  age  it  absolutely  bindg. 

3*^6  contract  of  an  infant  is  considered  in  law  as  jiifferent  from  ihe 
contracts  of  all  other  peTsuns. — In'some  cases  his  contract  shall  bind 

liim ;    such  is  the  ixmtrait  of  an  intant  for  necessaries,  and  the  law"* 
"allows  him  to  make  this  contract  as  necessary  for  his  preservation ;  and 
■ffierefore  in  such  case  a  single  bill  shall  bind  him,  though  a  bond  wi^ 
a  penalty  shall  not.     1  Lev.  87. 

Where  the  contract  may  be  for  the  benefit  of  the  infant,  or  to  his 
prejudice,  the  law  so  far  protects  him  as  to  give  him  an  opportunity  to 
consider  it  when  he  comes  of  age  ;  and  it  is  good  or  voidable  at  his 
election.  Cro.  Car.  502  ;  2  Rol,  24,  427  ;  Hob.  69  ;  1  Brownl.  11  ;  1 
Sid.  41 ;  1  Vent.  21 ;  1  Mod.  25  ;  Sir  W.  Jones,  164.  But  though  the 
infant  has  this  privilege,  yet  the  party  with  whom  he  contracts  has 
not:  he  is  bound  in  all  events.  And  as  maniage  is  now  looked  upon 
to  be  an  advantageous  contract,  and  no  distinction  holds  whether  the 
part}'  suing  be  man  or  womanT^but  the  true  distinction  is  whether  it 
may  be  for  the  benefit  of  the  infant,  we  think,  that  though  no  exjjress 
case  upon  a  maniage  contract  can  be  cited,  yet  it  falls  within  the  gen- 
eral reason  of  the  law  with  regard  to  infants'  contracts.  And  no 
dangerous  consequence  can  follow  from  this  determination;  because 
om*  opinion  protects^  the  infant  even  more  than  if  we  nde  the  contract 

'tQjb.e -absolutelj'  void,  ^nd  as  to_4^£rso,as  of  fuU  age,  it  leaves  them 
where   the  lajY.  leases   them,   which  grants  them  no  such  protection 


against  being  drawn  into  inconvenient  contracts. 

For  these  reasons  we  are  aU  of  opinion  that  the  plaintiff  ought  tc 
have  her  judgment  upon  the  demurrer. 


WILLIAM  J.   ATWELL   v.   EDWARD  J.   JENKINS. 

Supreme  Judicial  Court  of  Massachusetts,  January  24- 
April  2,  1895. 

[Reported  in  163  Massachusetts,  362.] 

Holmes,  J.  This  is  an  action  to  recover  four  hundred  dollars,  put 
into  the  defendant's  hands  by  the  plaintiff  through  the  Western  Union 
Telegraph  Company,  under  the  following  circumstances.  One  Hoes, 
an  inhabitant  of  Chicago,  committed  an  offence  here  and  was  arrested. 


176  AT  WELL   V.    JENKINS.  [CHAP.   I. 

It  seems  to  have  been  for  his  interest  to  keep  the  matter  private. 
He  retained  the  defendant,  who,  on  receipt  of  the  above  mentioned 
money,  recognized  as  surety  for  him  and  obtained  his  release  from 
arrest.  Afterwards  a  nolle  prosequi  was  entered  by  reason  of  the 
insanity  of  Hoes.  "When  arrested  Hoes  telegraphed  to  the  plaintiff, 
"Telegraph  at  once  four  hundred  dollars  to  Hon.  Edward  J.  Jenkins, 
my  attorney.  .  .  .  Am  in  trouble.  Don't  fail."  The  plaintiff  there- 
upon sent  the  money. 

It  hardly  needs  to  be  said  that  this  transaction  made  no  contract 
between  the  plaintiff  and  the  defendant.  The  plaintiff's  advance  was 
to  Hoes.  When  the  money  was  received  by  Jenkins,  it  was  received 
by  Hoes  as  between  them  and  the  plaintiff,  and  if  the  defendant  kept 
it,  that  was  by  some  arrangement  between  him  and  Hoes  with  which 
the  plaintiff  had  nothing  to  do. 

But  there  was  evidence  that  Hoes  was  insane  at  the  time,  and  the 
plaintiff  claims  a  right  to  recover  on  that  ground.  This  must  mean 
that  he  had  a  right  to  avoid  his  contract  on  the  ground  of  the  other 
party's  insanity,  and  to  demand  his  money  wherever  he  could  find  it, 
unless  the  defendant,  to  whose  hands  it  was  traced,  stood  as  a  pur- 
chaser for  value,  or  had  changed  his  position,  which  fact  the  plaintiff 
had  a  right  to  deny,  and  did  controvert  in  this  case,  except  as  to  fifty 
or  sixty  dollars.  We  presume  that  the  argument  is,  that  if  Hoes  had 
become  sane  and  had  affirmed  his  dealings  with  the  defendant,  the 
plaintiff  still  would  have  had  the  right  to  prove  that  the  defendant 
had  no  contract  with  Hoes,  and  was  not  a  purchaser  for  value,  and 
that,  on  the  other  hand,  if  Hoes  had  avoided  his  contract,  his  right 
to  the  money  would  be  subject  to  the  plaintiff's  paramount  right  to 
the  same  fund,  always  supposing  that  the  plaintiff  had  the  right  to 
avoid  his  contract  also.  Buller  v.  Harrison,  Cowp.  565,  568;  Cox 
V.  Prentice,  3  M.  &  S.  344. 

But  the  question  is  whether  the  plaintiff  had  the  right  supposed. 
In  Holt  ?;."4V^aid_Clarencieux,  Strange,  937,  it  was  held,  on  great 
considerationjLtha,t^  a  person  of  full  ag^contracting  with  an  infant 
was  bound  absolutdy,  although  the  infant  had  a  right  to  avoid  her 
contract.  The  decision  was  on  demurrer  to  a  plea  of  the  plaintiff's 
infancy,  not  alleging  that  the  defendant  was  ignorant  of  the  fact 
when  he  made  the  contract,  but  seems  to  have  been  made  without 
regard  to  whether  the  defendant  knew  or  not.  This  case  is  accepted 
without  dispute  as  the  law.  Thompson  v.  Hamilton,  12  Pick.  425, 
429 ;  Warwick  v.  Bruce,  2  M.  &  S.  205 ;  Bruce  v.  Warwick,  6  Taunt. 
118;  Monaghan  v.  Agricultural  Ins.  Co.,  53  Mich.  238,  243;  Hunt 
V.  Peake,  5  Cowen,  475;  Cannon  v.  Alsbury,  1  A.  K.  Marsh.  76; 
Johnson  v.  Rockwell,  12  Ind.  76,  81;  Field  v.  Herrick,  101  111.  110; 
2  Kent,  Com.  78,  236;  Leake,  Con.  (3d  ed.)  476.  The  analogy  be- 
twfiaa.  insane  persons  andJjoJantajLajiot  perfect,  but  has  prevailed  in 
this_jaattei:,  Allen  v.  Berryhill,  27  Iowa,  534;  Harmon  v.  Harmon, 
51  Fed.  Kep.  113;  Bish.  Con.   §  973;  Clark,  Con.  268.     An  insane 


SECT   II.] 


THOMAS   V.    THOMAS. 


177 


person  like  Hoes,  if  he  was  insane,  not  a  raving  madman  or  an  idiot, 
is  capable  of  an  act,  even  if  his  act  be  voidable.  Thepromise_of_an 
in8aneman_js^_not3bsoluj£l^voj^.  Carrier  ik  Sears,  4  Allen,  336, 
^37]  Bullard  v.  Moor,  158  Mass.  418,  424.  So  that  it  cannot  be 
argued  that  the  contract  was  formally  defective  and  void  because 
only  one  party  had  done  the  necessary  overt  act.  A.voidabie  promise 
isa^ufficigut^^onsider^l^on.  Plympton  v.  Dunn,  148  Mass.  523,  527. 
If  a  person  unwittingl}'  dealing  with  an  insane  man  were  given  the 
right  to  avoid  his  contract  when  he  found  out  the  fact,  it  would  be  on 
grounds  of  policy  and  fairness,  and  of  course  it  would  be  possible  to 
read  in  a  condition  or  personal  exception  to  that  effect.  But  there 
seems  to  be  no  more  reason  to  do  it  in  this  case  than  when  a  man  has 
contracted  with  an  infant.  The  general  rule  is  that  a  man  takes  the 
risk  of  facts  which  he  deems  material,  unless  he  expressly  stipulates 
for  them  in  his  contract,  or  unless  he  is  misled  by  a  fraudulent  mis- 
representation. See  Ring  v.  Phoenix  Assurance  Co.,  145  Mass.  426, 
429.  The  right  to  avoid  is  for  the  personal  protection  of  the  insane, 
and  those  who  deal  with  them  have  been  held  to  have  no  correspond- 
ing rights  in  all  the  cases  which  we  have  seen.  Upon,  tbeseconsid- 
eration8j_.^nd_jnvi^w_o|_Uifi_4^ci^^  we  are  of  opinion  tE^  _ 

theplamti^__cajrnot_re£udiate  his  CQutra^T^^It^^JS^s-     ^o_Joug_^3_ 
that  contract  stands,  at  leasTTne  cannot  maintain  an  action  against 
the  defendant.     Other  defences  need  not  be  considered.     We  express 
no  opinion  as  to  the  law  in  case  of  a  bilateral  contract  wholly  unexe- 
cuted on  both  sides.  Exceptions  overruled. 


ELEANOR  THOMAS  v.  BENJAMIN  THOIVIAS. 


In  the  Queen's  Bench,  February  5,   1842. 

[Reported  in  2  Queen's  Bench  Reports,  851.) 

Assumpsit.  The  declaration  stated  an  agreement  between  plaintiff 
and  del'eudant  that  the  defendant  should,  when  thereto  required  by  the 
plaintirt",  by  all  necessary  deeds,  conve^-ances,  assignments,  or  other 
assurances,  grants,  &c.,  or  otherwise,  assure  a  certain  dwelling-house 
and  premises,  in  the  county  of  Glamorgan,  unto  plaintiff  for  her  life,  or 
so  long  as  she  should  continue  a  widow  and  unmarried  ;  and  that  plain- 
till"  should,  at  all  times  duriug  which  she  should  have  possession  of  the 
said  (hvcUiug-house  and  premises,  pay  to  defendant  and  one  Samuel 
Thomas  (since  dcci-ased),  their  executors,  administrators,  or  assigns,  the 
sum  of  1/.  yearly  lowunls  the  ground-rent  payable  in  respect  of  the  said 
(Iwclliiig-hoiisL'  and  «)tlier  pi'cmises  thereto  adjoining,  and  keep  the  said 
ilvv(.'llii!g-house  and  prumises  in  good  and  tenantable  repair.  That  the 
said  agreement  beuig  made,  in  consideration  thereof  and  of  plaintiff's 
promise  to  perform  the  agreement,  Samuel  Thomas  and  the  defendant 

VOL.  I.  — 12 


178  THOMAS    V.    THOMAS.  [CHAP.   I. 

promised  to  perform  the  same  ;  and  that  although  phiintiff  afterwards 
and  before  the  commencement  of  the  suit,  to  wit,  &c.,  required  of 
defendant  to  grant,  &c.,  by  a  necessary  and  sufficient  deed,  &c.,  the 
said  dwelling-house,  &c.,  to  plaintiif  for  her  life,  or  whilst  she  continued 
a  widow;  and  though  she  had  then  continued,  &c.,  and  still  was,  a 
widow  and  unmarried,  and  although  she  did,  to  wit,  on,  &c.,  tender  t<:) 
the  defendant  for  his  execution  a  certain  necessary  ajid  sufficient  deed, 
&c.,  proper  and  sufficient  for  the  conveyance,  &c.,  and  although,  &c. 
(general  readiness  of  plaintiff  to  perform) ,  yet  defendant  did  not  nor 
would  then  or  at  any  other  time  convey,  &c. 

rieas  :   1.  N on  assumpsit.     2.  Thflt  there  was  not  the  consjdeiatiOB- 
alleged  in  the  declaration  for  the  defendant's  promise.     3.  Fraud  and 
covin.     Issues  thereon^ 

At  the  trial  before  Coltman,  J.,  at  the  Glamorganshire  Lent  Assizes, 
1841,  it  appeared  that  John  Thomas,  the  deceased  husband  of  the 
plaintitf,  at  the  time  of  his  death,  in  1837,  was  possessed  of  a  row  of 
seven  dwelling-houses  in  Meithyr  Tidvil,  in  one  of  which,  being  the 
dwelling-house  in  question,  he  was  himself  residing ;  and  that  b^  his 
will  he  appointed  his  brother  Samuel  Thomas  (since  deceased)  and 
the  defendant  executors  thereof,  to  ttxke  possession  of  all  his  houses, 
&c.,  subject  to  certain  pa3'ments  in  the  will  mentioned,  among  which 
were  certain  charges  in  money  for  the  benefit  of  the  plaintifl:'.  In  the 
evening  before  the  day  of  his  death  he  expressed  orally  a  wish  to  make 
Rome  further  provision  for  his  wife  ;  and  on  the  following  morning  he 
declared  orally,  in  the  presence  of  two  witnesses,  that  it  was  his  will 
tl  at  his  wife  should  have  either  the  house  in  which  he  lived  and  all  that 
it  contained,  or  an  additional  sum  of  100/.  instead  thereof. 

This  declaration  being  shortly  afterwards  brought  to  the  knowledge 
of  Samuel  Thomas  and  the  defendant,  the  executors  and  residuary  lega- 
tees, the}'  consented  to  carry  the  intentions  of  the  testator  so  expressed 
into  effect ;  and  after  the  lapse  of  a  few  days  they  and  the  plaintifl 
executed  the  agreement  declared  upon,  which,  after  stating  the  parties 
and  briefly  reciting  the  will,  proceeded  as  follows :  — 

"And  whereas  the  said  testator,  shortly  before  his  death,  declared, 
in  the  presence  of  several  witnesses,  that  he  was  desirous  his  said  wife 
should  have  and  enjoy  during  her  life,  or  so  long  as  she  should  continue 
his  widow,  all  and  singular  the  dweUing-house,"  &c.,  "or  100/.  out  of 
his  personal  estate,"  in  addition  to  the  respective  legacies  and  l.)equests 
given  her  in  and  by  his  said  will ;  "  but  such  declaration  and  desire  was 
not  reduced  to  writing  in  the  Ufe-time  of  the  said  John  Thomas  and 
read  over  to  him  ;  but  the  said  Samuel  Thomas  and  Benjamin  Thomas 
are  fully  convinced  and  satisfied  that  such  was  the  desire  of  the  said 
testator,  and  are  willing  and  desirous  that  such  intention  should  be 
carried  into  full  effect :  Now  these  presents  witness,  and  it  is  hereby 
agreed  and  declared  by  and  between  the  parties,  that,  in  consideration 
of  such  desire  and  of  the  premises,"  the  executors  would  convey  the 
dwelling-house,  &c.,  to  the  plaintiff  and  her  assigns  dming  her  life,  or 


SECT.   II.]  THOMAS   V.    THOMAS.  179 

for  so  long  a  time  as  she  should  continue  a  widow  and  unmarried : 
"  DTovided  nevertheless,  and  it  is  herebjjurther_agreed  and  declared, 
mat  the  saiH  Ji^ieanor  Thomas  or  her  assigns  shall  and  will,  at  all  times 
during  which  she  shall  have  possession^  of  the  said  dwelling-house,  &c.^ 
pay  to  the  said  Samuel  Thomas  and  Benjamin  Thomas,  their  executors, 
&c.,  the  sum  of  11.  yearlj-  towards  the  ground-rent  payable  in  respect 
of  the  said  dwelling-house  and  other  premises  thereto  adjoining,  and 
shall  and  will  keep  the  said  dwelling-house  and  premises  in  good  and 
tenantable  repair :  "  with  other  provisions  not  affecting  the  questions  in 
this  case. 

The  plaintiff  was  left  in  possession  of  the  dwelling-house  and 
premises  for  some  time;  but  the  defendant,  after  the  death  of  his 
co-executor,  refused  to  execute  a  conveyance  tendered  to  him  for 
execution  pursuant  to  the  agreement,  and  shortly  before  the  trial 
brought  an  ejectment,  under  which  he  turned  the  plaintiff  out  of 
possession.  It  was  objected  for  the  defendant  that,  a  part  of  the 
consideration  proved  being  omitted  in  the  declaration,  there  was  a 
fatal  variance.  The  learned  judge  overruled  the  objection,  reserving 
leave  to  move  to  enter  a  nonsuit.  Ultimately  a  verdict  was  found 
for  the  plaintiff  on  all  the  issues ;  and  in  Easter  Term  last  a  rule  nisi 
was  obtained  pursuant  to  the  leave  reserved. 
Chilton  and  W.  31.  James  now  showed  cause. 
JS.   V.    Williams^  contra. 

Lord  Denman,  C.  J.  There  is  nothing  in  this  case  but  a  great  deal 
of  ingenuity,  and  a  little  wilful  blindness  to  the  actual  tenns  of  the 
instrument  itself.  There  is  nothing  whatever  to  show  that  the  ground- 
rent  was  payable  to  a  superior  landlord  ;  and  the  stipulation  for  the 
paj-ment  of  it  is  not  a  mere  proviso,  but  an  ex|:)ress  agreement.  (His 
Lordship  here  read  the  proviso.)  TTns^in  terms  an  expre83_agree^ 
ment,  and  shows  a  suflicient  legal  consideration^  quite  independent  of 
the  moral  feeling  w]iTpiriTi"p2sH_JJ2£  pY»^ut'^r°  tr>  ^nt^^  into  S"^^^  -a 
contract-.  Mr.  Williams's  delinTtion  of  consideration  is  too  large  :  the 
word  causa  in  the  passage  referred  to  means  one  which  confers  what 
the  law  considers  a  benefit  on  the  party.  Then  the  obligation  to  repair 
is  one  which  might  impose  charges  heavier  than  the  value  of  the  life 
estate. 

Patteson,  J.  It  would  be  giving  to  causa  too  large  a  construction 
if  we  were  to  adopt  the  view  urged  for  the  defendant :  it  would  be 
confounding  consideration  with  motive.  Motive  is  not  the  same  thing 
with  consideration.  Consideration  means  something  which  is  of_some_ 
vaTue  iirthe^yc1)f  the  law,  moving  from  the  plaintiff :  it  may  be  some 
detriment  to  the  plaintiff,  or  somR  V)pnpfit_t,o  the  defendant;  hnt  flt  ivll 
events  it  must  be  moving  from  the  plaintiff.  2s  ow  that  which  is  sug- 
gested as  the  coni5ideratTon  here  ^^a'pTous  respect  for  the  M'ishes  of  the 
testator  —  does  not  in  any  way.  move  from  the  plaintiff :  it  moves  from 
the  testator ;  therefore,  legally  speaking,  it  forms  no  part  of  the  consid- 
eration. Theiijt  is  said  that,  if  that  be  so,  there  is  no  considerationat 
all,  it  is  a  mere  voluntarj'  gift :  Tint  when  we  look  at  the  agreement^we. 
find  that  this  is  not  a  mere  proviso  that  the  donee  shall  take  the  gift 


180  McMULLAN   V.   DICKINSON    COMPA2;r5r.  [CHAP.    I. 

wjjh  the  bjjrtbens  ;  but  it  is  an  express  agreement  to  pa}-  what  seems 
to  be  a  fresh  apportionment  of  a  ground-rent,  and  which  is  made  pa}-- 
able  not  to  a  superior  landlord  but  to  the  executors.  So  that  this  rent 
is  clearly  not  something  incident  to  the  assignment  of  the  house;  for 
in  that  case,  instead  of  being  payable  to  the  executors,  it  would  have 
been  payable  to  the  landlord.  Then  as  to  the  repairs :  these  houses 
laay  very  possibly  be  held  under  a  lease  containing  covenants  to  repair  \ 
but  we  know  nothing  about  it :  for  any  thing  that  appears,  the  liability 
to  repair  is  first  created  by  this  instrument.  The  pro\nso  certainly 
struck  me  at  first  as  Mr.  Williams  put  it,  that  the  rent  and  rei)airs  were 
merely  attached  to  the  gift  b}-  the  donors;  and,  had  the  instrument 
been  executed  by  the  donors  only,  there  might  have  been  some  ground 
for  that  construction  ;  but  the  fact  is  not  so.  Then  it  is  suggested  that 
this  would  be  held  to  be  a  mere  voluntary  conveyance  as  against  a  sub- 
sequent purchaser  for  value  :  possibly  that  might  be  so  :  but  suppose  it 
would  :  the  plaintiff  contracts  to  take  it,  and  does  take  it,  whatever  it 
is,  for  better  for  worse :  perhaps  a  bona  fide  purchase  for  a  valuable 
consideration  might  override  it ;  but  that  cannot  be  helped. 

Coleridge,  J.  The  concessions  made  in  the  course  of  the  argument 
have  in  fact  disposed  of  the  case.  It  is  conceded  that  mere  motive 
need  not  be  stated  ;  and  we  are  not  obliged  to  look  for  the  legal 
consideration  in  any  particular  part  of  the  instrument,  merely  because 
the  consideration  is  usually  stated  in  some  particular  part :  ut  res^ 
magis  valeaU  we  may  look  to  any  part.  In  this  instrument,  in  the 
part  where  it  is  usual  to  state  the  consideration,  nothing  certainly  is 
expressed  but  a  wish  to  fulfil  the  intentions  of  the  testator ;  but  in 
another  part  we  find  an  express  agi'eement  to  pa}'  an  annual  sum  for  a 
particular  purpose,  and  also  a  distinct  agreement  to  repair.  If  these 
had  occurred  in  the  first  part  of  the  instrument,  it  could  hardly  have 
been  argued  that  the  declaration  was  not  well  drawn,  and  supported 
b}'  the  evidence.  As  to  the  suggestion  of  this  being  a  voluntary'  con- 
veyance, my  impression  is  that  this  payment  of  1/.  annually  is  more 
than  a  good,  consideration  :  it  is  a  valuable  consideration  :  it  is  clearly 
a  thing  newly  created,  and  not  part  of  the  old  ground-rent. 

Iiule~ctrsckarged.^ 


WILLIAM   McMULLAN  v.    DICKINSON   COMPANY. 
Minnesota  Supreme  Court,  January  14,   1896. 

[Reported  in  63  Minnesota,  405.2] 

Collins,  J.  From  the  resolution  which  was  incorporated  bodily 
into  the  instrument  executed  by  both  parties  as  their  contract  it 
appears  that  it  was  resolved  to  employ  plaintiff  as  an  assistant  man- 

^  Montpelier  Seminary  v.  Smith's  Estate,  69  Vt.  382,  contra. 
2  Part  of  the  case  is  omitted. 


JlU^  c»-t-Ji^   Am-^    gjtj,^^    .*«-t>"-<»J^  j»,AL^c£i^    UM  ^XBj_ 


SECT.    II.]  McMULLAN   V.   DICKINSON   COMPANY.  181 

ager  of  the  corporate  business  at  a  fixed  salary  per  year,  payable  in 
monthly  instalments.  The  term  of  employment  was  determined  upon 
as  the  period  of  time  during  which  the  corporate  business  might  be 
carried  on;  not  to  exceed,  of  course,  the  life  of  the  corporation  as 
fixed  by  law.  Two  provisos  were  appended  to  the  paragraph  relating 
to  the  term  of  employment,  —  one  that  plaintiff  should  properly  and 
efficiently  discharge  his  duties  as  such  assistant;  the  other,  that  his 
term  of  employment  should  continue  only  so  long  as  he  owned  and 
held,  in  his  own  name,  fifty  shares,  fully  paid  up,  of  the  defendant's 
capital  stock.  A  recital  that  plaintiff  had  accepted  the  employment 
followed,  and  then  the  agreement  whereby  defendant  employed  plain- 
tiff and  the  latter  entered  into  the  employment,  each  party  being  sub- 
ject to  the  terms  and  conditions  mentioned  and  prescribed  by  the 
resolution. 

Counsel  for  defendant  urges  several  objections  to  the  validity  of 
the  contract,  but  they  are  all  disposed  of  by  considering  the  claim 
that  it  is  and  was  void  for  lack  of  mutuality  of  consideration,  the 
point  being  that,  while  the  character  of  the  services  to  be  rendered 
and  the  compensation  were  fixed,  no  definite  period  of  time  was  agreed 
upon  during  which  the  plaintiff  should  work  or  defendant  employ  and 
pay.  The  language  used,  independent  of  the  provisos,  was :  "  Said 
employment  is  to  continue  during  the  time  the  business  of  said  cor- 
poration shall  be  continued,  not  exceeding  the  term  and  existence  of 
the  corporation."  The  only  conditions  mentioned  and  imposed  being 
that,  while  in  defendant's  employ,  the  plaintiff  should  render  proper 
and  efficient  service,  and  should  own  and  hold  in  his  own  name  certain 
shares  of  corporate  stock. 

As  we  consti'ue  the  expressions  used,  the  duration  of  the  term  of 
employment  was  sufficiently  defined,  for  the  law  does  not  require  that 
the  precise  number  of  days  or  months  or  years  shall  be  stated ;  and 
there  was  mutuality  of  consideration.  The  term  fixed,  dependent 
only  upon  the  condition  as  to  plaintiff's  ownership  of  the  stock 
shares,  was  for  such  period  of  time  as  defendant  corporation  might 
continue  to  transact  business.  It  might  cease  to  do  business  volun- 
tarily, or  there  might  be  an  involuntary  termination  of  its  business 
transactions;  for  instance  by  proceedings  in  insolvency  instituted  by 
its  creditors,  or  the  business  might  terminate  by  operation  of  law  at 
the  end  of  not  to  exceed  thirty  years  from  the  date  of  its  organiza- 
tion,—  that  being  the  life  term  of  corporations  of  this  character 
under  the  statutes.  The  defendant  agreed  to  keep  plaintiff  in  its 
employ  so  long  as  he  retained  as  the  owner,  and  held  in  his  own 
name,  the  shares,  and  it  continued  in  business;  and  plaintiff,  in  con- 
sideration of  defendant's  agreement,  stipulated  that,  so  long  as  he 
remained  in  such  employment,  he  would  own  and  hold  the  stock,  and 
would  perform  proper  and  efficient  service.  The  requirement  that 
plaintiff  should  own  and  continue  to  hold  the  stock  as  a  condition  to 
his  retention  by  defendant  was,  presumptively,  for  the  benefit  of  the 


182  WELLS   V.   ALEXAXDBB.  [CHAP.   I. 

latter,  and  a  detriment  to  the  former.  It  was  in  defendant's  interest 
to  have  its  stock  shares  permanently  held  by  its  employes,  for  such 
holding  would  serve  to  stimulate  them  in  the  performance  of  their 
duties.  It  was  an  injury  to  plaintiff  to  hold  the  stock  as  a  condition 
for  his  employment,  especially  when  we  consider  that  the  business 
of  the  concern  could  be  closed  out  at  any  time,  leaving  him  out  of 
employment,  with  the  stock  upon  his  hands.  Had  the  plaintiff  dis- 
posed of  his  shares,  the  defendant  would  have  suffered  a  loss ;  and, 
had  the  latter  ceased  business,  the  former  would  have  been  injured. 
Had  the  relation  of  employer  and  employe  terminated  between  these 
parties  through  the  happening  of  either  of  these  two  contingencies, 
neither  party  would  have  been  in  static  quo.  The  consideration  for 
the  agreement  was  ample  and  mutual,  although  the  term  of  service 
might  be  terminated  by  defendant's  cessation  of  business  or  plain- 
tiff's selling  his  stock  in  the  corporation.  See  Bolles  v.  Sachs,  37 
Minn.  315,  33  N.  W.  862.  The  expressions  of  a  contingency  whereby 
the  contract  might  be  terminated  by  the  act  of  either  party  expressly 
excluded  the  idea  that  each  was  at  liberty  to  terminate  it  at  any  time 
without  regard  to  the  happening  of  either  contingency.^ 


MARGARET  WELLS,  Appellant,  v.  FRANCIS  ALEXANDRE, 
ET  AL.,  Respondent. 

New  York  Court  of  Appeals,  October  13-December  1,  1891. 

[Reported  in  130  Neiv  York,  642.] 

Parker,  J.^  December  31,  1887,  the  plaintiff  addressed  the  follow- 
ing communication  to  the  defendants:  — 

"  Messrs.  F.  Alexandre  &  Sons,  New  York  : 

"  Gents,  —  We  propose  to  furnish  your  steamers,  '  City  of  Alexandria,' 
'City  of  Washington'  and  'Manhattan,'  with  strictly  free  burning  pea,  de- 
livered alongside  Pier  3,  North  River,  iovjthe.  year  1888,  commencing  Jan.- 
1st  to  Dec.  olst,  for  the  sum  of  three  dollars  and  five  cents  per'ton.  We  also' 
agree  to  furnish  any  other  steamers  of  your  line  with  same  coal  and  at  same 
price  at  any  time  you  wish.  If,  through  any  cause,  we  are  unable  to  deliver 
pea  coal,  we  will  deliver  you  other  sizes  at  an  equitable  adjustment  of  price. 

"  Yours,  very  respectfully, 

"Jos.  K.  Wells,  Agt." 

1  "  When  a  man  acts  in  cousideration  of  a  conditional  promise^if  Jie_gets  the  prom 
ise  he  sets^all  that  he  is  entitled  to  by  liis  acf,  and  if,  as  eventslurn  out,  the  condition 
Ts  not  satisfied,  and  the~proniise  calls  for  no  performance,  there  is  no  failure  of  con- 
sideration." ^Holmes,  J.,  in  Gutlon  y.Marcus,  165  IVIass.  335,  336. 

*  A  small  portion  of  the  opinion  is  omitted. 


SECT.   II.]  WELLS   V.   ALEXANDRE.  183 

To  which  the  defendants  on  January  4,  1888,  replied  as  follows:  — 

"Mr.  Jos.  K.  Wells: 

"  Dear  Sir,  —  \Ve_beg^  to  accept  your  offer  of  31st  nit,.,  to  furnish  our 
steamers,  '  City  of  Alexandria  '  '  City  oiJ^!^shiugton  '  and  'JJ^IanJliaLttan . '  with  ^ 
strictly  free  burning  ppa.  fnal^  flplivprgd  ;^1nng_sidfi  Pier  3,  North  River,  for  thp.    . 
year  1888,  confm e li cinof  JSnuaryTst,  for  the  sum  of  $3.05  per  ton  of  2,240  lbs.;  , 
also  to  iumisn  any^lher  steamer  of  our  line  with  same  coal  at  same  price,  if 
"we  wish  it.     If7  through~any" caused  you~are  unable  to  deliver  pea  coal,  yoa 
will  deliver  us  other  sizes  at  au  equitable  adjustment  of  price. 

"  Yours  truly, 

"  F.  Alexandre  &  Sons." 

Thereafter,  and  until  the  twenty-fifth  day  of  June  following,  the 
plaintiff  furnished  to  the  defendants  such  quantities  of  coal  as  were 
required  for  the  use  of  the  steamships  named.  On  that  day  the 
defendants  sold  to  the  New  York  and  Cuba  Steamship  Company 
all  their  steamship  property,  charters,  and  business,  including  the 
steamers  mentioned  in  the  correspondence,  and  ceased  to  operate 
them.  The  steamers  under  the  control  and  management  of  the  pur- 
chaser of  June  twenty-fifth  continued  to  make  regular  trips  at  stated 
intervals  between  the  same  ports  as  before,  and  during  the  remaining 
portion  of  the  year  required  and  used  large  quantities  of  coal.  The 
plaintiff  insists  that  the  correspondence  created  a  valid  contract  by 
which  she  became  bound  to  deliver,  and  the  defendants  to  receive,  at 
the  price  named,  all  coal  which  would  be  required  for  the  operation 
of  the  steamers  during  1888,  and  as  the  coal  required  for  their  use 
was  not  received  by  the  defendants  after  June  twenty-fifth,  that  she 
is  entitled  to  recover  the  damages  sustained  because  of  the  default  of 
the  defendants. 

The  defendants,  on  the  other  hand,  contend  that  the  correspond- 
ence did  not  create  a  contract;  that  if  it  did,  it  was  a  contract  for 
successive  deliveries  of  coal,  to  be  made  only  when  the  defendants 
should  give  the  plaintiff  notice  that  a  delivery  was  required,  and  as 
notice  had  not  been  given,  the  defendants  are  not  in  default. 

If  in  plaintiff's  offer  the  words  "one  thousand  tons"  had  been 
employed  instead  of  "your  steamers  '  City  of  Alexandria,'  '  City  of 
Washington  '  and  '  Manhattan,'  "  it  would  not  be  questioned  that  the 
written  acceptance  of  the  defendants  created  a  valid  contract.  The 
offer  and  acceptance  were  unqualified;  the  price  fixed;  the  duration 
of  the  contract  limited  to  a  period  commencing  January  first,  and 
ending  December  thirty-first  of  the  same  year;  and  the  quantity 
would  have  been  certa,in. 

As  it  was  not  possible  to  determine  the  precise  amount  of  coal  that 
would  be  required  to  operate  the  steamers  during  the  year,  the  plain- 
tiff seems  to  have  made  his  proposition  as  to  amount  as  definite  and 
certain  as  the  situation  permitted.  Three  of  defendants'  steamers 
made  regular   trips  at  stated   intervals   between  certain  ports   and 


184  WELLS   V.   ALEXANDRE.  [CHAP.   I. 

necessarily  required  and  used  in  so  doing  large  quantities  of  coal, 
and  in  view  of  that  condition  the  plaintiff  offered  to  "furnish  your 
steamers  '  City  of  Alexandria,'  'City  of  Washington'  and  'Manhat- 
tan,' "  with  coal  for  a  period  of  about  a  year.  It  is  very  clear  that  the 
language  employed  by  plaintiff  in  the  light  of  surrounding  circum- 
stances was  intended  to  make  as  definite  as  possible  the  quantity  of 
coal  which  the  defendants  would  be  required  to  take.  The  quantity 
to  be  measured  by  the  requirements  of  the  three  steamers  for  the  year 
ensuing  in  an  employment  about  which  they  had  been  long  engaged. 
So,  while  at  the  date  of  the  agreement  the  quantity  was  indefinite,  it 
was,  nevertheless,  determinable  by  its  terms  and,  therefore,  certain, 
within  the  maxim,  certuvi  est  quod  certuvi  reddi  potest. 

Defendants  urged  that  if  it  be  conceded  that  the  proposition 
accepted  was  to  furnish  the  steamers  with  coal  for  the  year,  at  three 
dollars  and  five  cents  per  ton,  still  the  undertaking  was  to  furnish 
coal  from  time  to  time  when  defendants  should  notify  her  that  de- 
liveries were  requii'ed,  and  as  no  such  notice  has  been  given  since 
the  last  delivery  for  which  payment  has  been  made,  the  defendants 
are  not  in  default  and  no  recovery  can  be  had. 

The  argument  made  in  support  of  this  proposition  briefly  stated  is, 
that  it  is  apparent  that  it  could  not  have  been  in  the  contemplation 
of  the  parties  that  the  coal  should  be  furnished  in  one  lot,  but  rather 
at  different  times  as  the  steamers  required  it  for  their  several  voy- 
ages; nor  could  the  plaintiff  know  the  amount  which  each  steamer 
would  require  at  the  successive  loadings.  Therefore,  the  defendants 
were  to  determine  the  time  and  quantity  for  each  delivery,  and  as 
the  contract  contained  no  promise  to  give  the  plaintiff  notice,  the 
defendants  were  bound  to  take  only  such  coal  as  they  notified  the 
plaintiff  to  furnish. 

It  may  be  doubted  whether  there  is  anything  in  the  record  to 
warrant  a  determination  that  the  plaintiff  would  not  know  the  several 
amounts  and  times  when  coal  would  be  needed,  but  if  it  were  other- 
wise, we  do  not  deem  it  controlling.  As  we  have  already  said,  the 
evident  intention  of  the  parties  was  that  the  plaintiff  should  furnish 
to  the  defendants  all  the  coal  which  the  steamers  named  should 
require  in  the  work  in  which  they  were  employed  for  the  year  ensu- 
ing, and  that  the  parties  should  perform  all  needful  acts  to  give  effect 
to  the  agreement;  therefore,  if  a  notice  was  requisite  to  its  proper 
execution,  a  covenant  to  give  such  notice  will  be  inferred,  for  any 
other  construction  would  make  the  contract  unreasonable  and  place 
one  of  the  parties  entirely  to  the  mercy  of  the  other.  Jugla  v. 
Trouttet,  120  N.  Y.  21-28;  New  Eng.  Iron  Co.  v.  Gilbert  E.  R.  R. 
Co.,  91  id.  153;  Booth  v.  C.  R.  M.  Co.,  74  id.  15. 

The  fact  that  the  defendants  deemed  it  best  to  sell  the  steamers, 
cannot  be  permitted  to  operate  to  relieve  them  from  the  obligation  to 
take  the  coal  which  the  ordinary  and  accustomed  use  of  the  steamers 


SECT,   n.]  TRAVER   V.   .  185 

required,  for  the  provisions  of  the  agreement  do  not  admit  of  a  con- 
struction that  it  was  to  terminate  in  the  event  of  a  sale  or  other  dis- 
position of  them  by  the  defendants. 

The  judgmeyit  should  be  reversed.^ 


TRAVER  V. 


In  the  King's  Bench,  Michaelmas  Term,  1661. 

[Reported  in  1  Siderjin,  67.] 

A  WOMAN,  after  the  death  of  her  husband,  said  to  one  of  his  credi- 
tors that,  if  he  would  prove  that  lier  husband  owed  him  20/.,  she  would 
pay  it ;  and  upon  this  assumpsit  the  creditor  brought  an  action  on  the 
case  against  the  woman,  without  any  proof  made  before  the  action 
brought ;  but  in  this  action  it  was  found  bv  verdict  that  her  husband 
owed  him  that  amount.  And  it  was  moved  in  arrest  of  judgment  that 
this  action  was  not  well  brought,  for  he  ought  to  have  proved  the  debt 
to  entitle  himself  to  the  action,  and  ought  to  have  proved  it  before 
action  brought. 

But  upon  several  debates  the  Court  held  clearl)''  that  the  action  was 
well  brought,  and  that  the  plaintiff"  should  have  judgment.  And  it  is 
not  requisite  to  make  any  proof  of  it  before  action  brought,  but  it  can 
more  properly-  and  more  naturally  be  tried  in  this  action.     And  Twrs- 

DEN,  J.  cited  a  case,  15  Jac,  between  Grinden  and  ,  which  was, 

"  In  consideration  you'll  prove  I  have  beaten  your  son,  I'll  pay  you  so 
much"  (naming  the  sum),  and  adjudged  that  he  can  bring  an  action 
before  any  proof  made,  in  which,  if  he  proves  it,  he  shall  recover ;  and 

^  Hartley  v.  Cummings,  5  C.  B.  247  ;  National  Furnace  Co.  v.  Keystone  Mfg.  Co., 

110  111.  427;  Minnesota  Lumber  Co.  v.  Whitebreast  Coal  Co.,  160  111.  85;  Warden 
Coal  Washing  Co.  v.  Meyer,  98  111.  App.  640  ;  Smith  v.  Morse,  20  La.  Ann.  220 ;  Burgess 
Fibre  Co.  v.  Broomfield,  62  N.  E.  Rep.  367  (Mass.) ;  Cooper  v.  Lansing  VVlieel  Co.,  94 
Mich.  272 ;  Hickey  v.  O'Brien,  123  Mich.  611  ;  E.  C.  Dailey  Co.  v.  Clark  Can  Co.,  87 
N.  W.  Rep.  761  (Mich.)  ;  Ames-Brooks  Co.  v.  vEtna  Ins.  Co.,  83  Minu.  346;  Ka.st  v. 
Cayuga  Lake  Ice  Co.,  21  N.  Y.  Supp.  887  ;  Miller  v.  Leo,  3.5  N.  Y.  App.  Div.  589,  165 
N.  Y.  619,  ace.     Compare  Berk  v.  International  Explosives  Co.,  7  Comm.  Cas.  20. 

Bailey  v.  Austrian,  19  Minn.  535;  Cool  v.  Cunningham,  25  S.  C.  136;  Woodward  v. 
Smith,  109  Wis.  607,  contra. 

See  also  Burton  v.  Great  Northern  Ry.  Co.,  9  Ex  507  ;  American  Cotton  Oil  Co. 
V.  Kirk,  68  F'ed.  791  ;  Columbia  Wire  Co.  v.  Freeman  Wire  Co.,  71  Fed.  Rep.  302  ; 
Crane  v.  C.  Crane  &  Co.,  105  Fed.  Rep.  869  (C.  C.  A.)  ;  Morrow  i.-.  Southern  Ex.  Co., 
101  Ga.  810  ;  Savannah  Ice  Co.  v.  American  Refrigerator  Co.,  110  Ga.  142;  Vogel  v. 
Pekoe,  157  111.  339 ;  Sage  v.  W.  H.  Pnrcell  Co.,  90  111.  App.  160,  189  111.  79  ;  Ameri- 
can Refrigerator  Co.  v.  Chilton,  94  111.  App  6  ;  Jordan  v.  Indianapolis  Co.,  61  N.  E. 
Rep.  12  (Ind.  App.) ;  Benjamin  v.  Bruce,  87  Md.  240;  Michigan  Bolt  Works  v.  Steel, 

111  Mich.  153  ;  Tarbox  v.  Gotzian,  20  Minn.  139  ;  Beyerstedt  v.  Winona  Mill  Co  ,  49 
Minn.  1  ;  Rafolovitz  v.  American  Tobacco  Co.,  29  Abb'.  N.  C.  406;  Gulf,  &c.  Ry.  Co  v. 
Winton,  7  Tex.  Civ.  App.  57  ;  Hoffman  v.  Maffioli,  104  Wis.  630 ;  Teipel  v.  Meyer.  106 
Wis   41, 


186  BKOOKS   V.   BALL.  [CHAP.   I. 

it  was  said  that  the  law  is  the  same  in  the  case  of  a  wager.  Also  it 
was  not  denied  by  any  but  that  this  is  a  good  consideration  to  support 
an  action  against  the  woman,  though  she  was  not  administratrix,  .fed 
qua  stranger  ;  for  it  is  a  trouble  and  charge  to  the  plaintiff  to  make  the 
proof,  though  it  is  not  any  benefit  to  the  woman.^ 


BROOKS   V.   BALL. 
Supreme  Court  of  New  York,  October  Term,   1820. 

[Reported  in  18  John  son,  337.^ 

In  error  to  the  Court  of  Common  Pleas  of  Orange  County.  Ball 
brought  an  action  of  assumpsit  against  Brooks  in  the  court  below. 
The  declaration  contained  a  special  count,  stating  that  the  plaintiff 
claimed  of  the  defendant  the  sum  of  one  hundred  dollars,  which  the 
defendant  denied  that  he  owed  to  the  plaintiff,  but  promised  that,  if  the 
plaintiff  would  make  oath  to  the  correctness  of  his  claim,  he,  the  defend- 
ant, would  pay  the  amount  thereof;  and  averred  that  the  plaintiff  did 
make  oath  to  the  truth  and  correctness  of  his  claim,  but  that  the 
defendant,  notwithstanding  his  promise,  refused  to  pay  the  one  hun- 
dred dollars,  «S:c.  The  declaration  also  contained  the  common  money 
counts.     The  defendant  pleaded  the  general  issue. 

After  the  plaintiff's  counsel  had  stated  his  case,  the  defendant's 
counsel  insisted  that,  admitting  the  facts  stated  to  be  proved,  they 
were  not  sufficient  to  support  the  action,  because  the  promise  of  the 
defendant  was  without  consideration  and  void,  and  the  plaintiff  could 
not  lawfully  support  his  claim  on  his  own  aflidavit.  lie  therefore 
moved  that  the  plaintiff  should  be  nonsuited,  but  the  objection  was 
overruled  by  the  coiu't.  The  plaintiff  then  went  into  the  evidence  in 
support  of  his  case.  It  was  proved  that  the  defendant  made  the  prom- 
ise alleged  ;  that  the  plaintiff  had  made  the  affidavit,  and  demanded 
pa^inent  of  the  one  hundred  dollars ;  and  that  the  defendant  had  ad- 
mitted his  liability  to  pay  the  money,  and  intended  to  pay,  but  was 
advised  to  the  contrary. 

1  "  Nota.  A.,  upon  receipt  of  Is.  from  B.,  assumed  and  promised  that,  if  B.  could 
prove  that  A.  had  heateu  him  in  the  ciiancel  of  such  a  church,  he  would  pay  him  20/. 
B.  brought  assumpsit  upon  this  promise.  A.  pleaded  non  assumpsit,  and  the  issue  was 
found  tor  the  plaintiff.  And  it  was  moved  in  arrest  of  judgmeut  that  he  brought  the 
action  before  any  duty  accrued  to  him  :  for  there  was  no  duty  before  he  had  proved  a 
battery  in  the  chancel ;  and  if  that  be  found,  theu  an  actiou  accrues  to  him.  But  Dod- 
deridge  and  Chaniberlaiue  (uhse/itihus  the  other  justices)  held  clearly  that  the  action 
lies  before,  and  this  trial  and  proof  of  tjje  battery  shall  be  by  the  same  jury  which  tries 
the  assumpsit.  OtherwLse  if  he  had  said,  '  After  that  you  have  proved  that  I  struck 
you,  &c.,  theu  I  do  assume  to  pay  you  20^.*  And  it  was  said  that  it  was  so  in  18  E.  4, 
and  that  it  was  so  adjudged  in  this  court ;  and  the  clerk  of  the  court  so  affirmed  that 
it  was  ruled  in  tliis  court."    Anon.,  Palm.  160. 


SECT.   II.]  BKOOKS   V.   BALL.  18T 

The  defendant's  counsel  then  offered  to  prove  that  the  plaintiff,  in  his 
affidavit,  had  sworn  falsely",  or  was  grossh'  mistaken.  This  evidence 
was  objected  to,  and  overruled  bj'  the  court ;  and  the  counsel  for  the 
defendant  tendered  a  bill  of  exceptions.  The  jur}-,  under  the  direction 
of  the  court,  found  a  verdict  for  the  plaintiff  for  one  hundred  and  ten 
dollars  and  fifty  cents. 

TVisTier,  for  the  plaintiff  in  error. 

Betts,  contra. 

Spencer,  C.  J.,  delivered  the  opinion  of  the  court.  The  principal 
question  presented  by  this  case  is,  whether  a  promise  to  pay  a  sum 
claimed  to  be  (hie,  by  one  party  and  denied  by  the  other,  if  the  party 
claiming  would  swear  to  the  correctness  of  the  claim,  and  he  does  so 
swear,  is  a  valid  promise.  Another  question  was  made  on  the  trial, 
whether  it  was  competent  to  the  defendant  below  to  prove  that  the 
plaintiff  below  either  swore  falsely  or  was  gi'ossly  mistaken  in  the 
affidavit  which  he  made. 

It  has  been  frequently  decided  that  a  promise  to  pay  mone}',  in  con- 
sideration that  the  plaintiff  would  take  an  oath  that  it  was  due,  was  a 
valid  and  binding  promise.  Thus,  in  Bretton  v.  Prettiman,  Sir  T. 
RajTn.  153,  the  plaintiif  declared  that  the  defendant  promised,  in  con- 
sideration that  the  plaintiff  would  take  an  oath  that  money  was  due  to 
him,  he  would  pay  Mm  ;  and  the  plaintiff  averred  that  he  swore  before 
a  master  in  chancer}'.  On  demurrer,  it  was  adjudged  for  the  plaintiff, 
and,  as  the  reporter  states,  because  it  was  not  such  an  oath  for  which 
he  ma}'  be  indicted.  In  Amie  &  Andrews,  1  Mod.  166,  there  was  a 
promise  to  pay,  if  the  plaintiff  would  bring  two  witnesses  before  a 
justice  of  the  peace,  who  should  depose  that  the  defendant's  father  was 
indebted  to  the  plaintiff;  and  two  judges  against  one  thought  it  not 
a  profane  oath,  because  it  tended  to  the  determining  a  controversy, 
and  the  plaintiff  had  judgment.  This  case  occurred  before  the  Statute 
of  Frauds.  The  promise  would  now  be  holden  to  be  void,  unless  in 
writing,  it  being  to  pay  the  debt  of  a  third  person.  The  case  of 
Bretton  v.  Prettiman  is  differently  stated  in  1  Sid.  283,  and  2  Keb.  26, 
44.  It  is  there  stated  to  be  a  promise  to  pay,  if  the  plaintiff  would 
procure  a  third  person  to  make  oath  that  the  money  was  due.  But 
this  makes  no  difference  in  principle,  for  in  either  case  the  oath  was 
extra-judicial. 

In  Stevens  and  others  v.  Thacker,  Peake's  N.  P.  Rep.  187,  the  de- 
fendant was  sued  as  the  acceptor  of  a  bill,  and  alleged  it  to  be  a  forgery, 
and  offered  to  make  affidavit  that  he  never  had  accepted  it.  The  plain- 
tiff agreed  not  to  sue  the  defendant,  if  he  would  make  the  affidavit. 
The  affidavit  was  drawn,  but  not  sworn  to.  Lord  Kenyon  said  that, 
had  the  defendant  sworn  to  the  affidavit,  he  should  have  held  that  he 
had  discharged  himself,  though  the  affidavit  had  been  false  ;  for  the 
plaintiffs,  who  had  agreed  to  accept  that  affidavit  as  evidence  of  the 
fact,  should  not,  after  having  induced  the  defendant  to  commit 
the  crime  of  perjury,  maintain  an  action  on  the  bill.     In  Lloyd  •&  Wil 


188  DEVECMON    V.    SHAW   AND   DEYRTES.  [CHAP.    I, 

Ian,  1  Esp.  Rep.  178,  the  defendant's  attorney  proposed  to  the  plaiii- 
tilT's  attorney,  that  the  defendant  should  pay  the  demand,  if  the  plaintiff's 
porter  would  make  an  affidavit  that  he  had  delivered  the  goods  iu 
question  to  the  defendant.  The  affidavit  was  made  ;  and  Lord  Kenyon 
held  it  to  be  conclusive,  and  that  the  defendant  was  precluded  from 
going  into  any  defence  in  the  case. 

These  cases,  which  stand  uncontradicted,  abundantly  show  that  such 
a  promise  as  the  present  is  good  in  point  of  law,  and  that  the  making 
the  proof  or  affidavit,  whether  by  a  third  person  or  by  the  party  him- 
self, is  a  sufficient  consideration  for  the  promise.  It  is  not  making  a 
man  a  judge  in  his  own  cause,  but  it  is  referring  a  disputed  fact  to  the 
conscience  of  the  party.  It  is  begging  the  question  to  suppose  that  it 
will  lead  to  perjury.  If  the  promise  is  binding,  because  the  making 
the  proof  or  affidavit  is  a  consideration  for  it,  the  defendant  must 
necessarily  be  precluded  from  gainsapng  the  fact.  He  voluntarily 
waives  all  other  proof ;  and  to  allow  him  to  draw  in  question  the  verity 
or  correctness  of  the  proof  or  affidavit,  would  be  allowing  him  to  alter 
the  conditions  of  his  engagement,  and  virtually  to  rescind  his  promise. 

Judgment  affirmed,^ 


JOHN   SEMMES   DEVECMON   v.   ALEXANDER   SHAW  and 
CHRISTIAN   DEVRIES,  Executors  of  John  S.  Combs. 

Maryland  Court  of  Appeals,  April  Term,  1888. 

[^Reported  in  69  Maryland,  199.] 

l^RYAN,  J.,  delivered  the  opinion  of  the  court :  — 

John  Semmes  Devecmon  brought  suit  against  the  executors  of  John 
S.  Combs,  deceased.  He  declared  in  the  common  counts,  and  also 
filed  a  bill  of  particulars.  After  judgment  by  default,  a  jury  was  sworn 
to  assess  the  damages  sustained  by  the  plaintiff.  The  evidence  con- 
sisted of  certain  accounts  taken  from  the  books  of  the  deceased, 
and  testimony  that  the  plaintiff  was  a  nephew  of  the  deceased,  and 
lived  for  several  years  in  his  family,  and  was  in  his  service  as  clerk 
for  several  years.  The  plaintiff  then  made  an  offer  of  testimony,  which 
is  thus  stated  iu  the  bill  of  exceptions  :  "  that  the  plaintiff'  took  a  trip 
to  Europe  in  1878,  and  that  said  trip  was  taken  by  said  plaintiff,  and 
the  money  spent  on  said  trip  was  spent  by  the  said  plaintiff  at  the  in- 
stance and  request  of  said  Combs,  and  upon  a  promise  from  him  that 
he  would  reimburse  and  repay  to  the  plaintiff  all  money  expended  by 
him  in  said  trip  ;  and  that  the  trip  was  so  taken  and  the  money  so  ex- 
pended by  the  said  plaintiff,  but  that  the  said  trip  had  no  connection 
with  the  business  of  said  Combs ;  and  that  said  Combs  spoke  to  the 

i  See  1  Vin.  Abr.  298,  pi.  22;  Seaward  w.Lord.  1  Me.  163. 


SECT.   II.]  DEVECMON   V.    SHAW   AND   DEVRIES.  189 

witness  of  his  conduct  in  being  thus  wilHng  to  pay  his  nephew's  expenses 
as  liberal  and  generous  on  his  part."  On  objection,  the  court  refused 
to  permit  the  evidence  to  be  given,  and  the  plaintiff  excepted. 

It  might  very  well  be,  and  probabl}-  was  the  case,  that  the  plaintiff 
would  not  have  taken  a  trip  to  Europe  at  his  own  expense.  But 
whether  this  be  so  or  not,  the  testimonj'  would  have  tended  to  show- 
that  the  plaintiff  incurred  expense  at  the  instance  and  request  of  the 
deceased,  and  upon  an  express  promise  bj'  him  that  he  would  repay  the 
money  spent.  It  was  a  burden  incurred  at  the  request  of  the  other 
party,  and  was  certainly  a  sufficient  consideration  for  a  promise  to  pay. 
Great  injury  might  be  done  b}-  inducing  persons  to  make  expenditures 
beyond  their  means,  on  express  promise  of  repayment,  if  the  law  were 
otherwise.  It  is  an  entirel}'  different  case  from  a  promise  to  make 
another  a  present ;  or  render  him  a  gratuitous  service.  It  is  nothing 
to  the  purpose  that  the  plaintiff  was  benefited  by  the  expenditure  of 
his  own  mone}'.  He  was  induced  bj-  this  promise  to  spend  it  in  this 
way,  instead  of  some  other  mode.  If  it  is  not  fulfilled,  the  expenditure 
will  have  been  procured  by  a  false  pretence. 

As  the  plaintiff,  on  the  theory  of  this  evidence,  had  fulfilled  his  part 
of  the  contract,  and  nothing  remained  to  be  done  but  the  payment  of 
the  mone}'  b}'  the  defendant,  there  could  be  a  recover^'  in  indebitatus 
asswnpsit ;  and  it  was  not  necessarj'  to  declare  on  the  special  contract. 
The  fifth  count  in  the  declaration  is  for  "  inone}'  paid  by  the  plaintiff 
for  the  defendants'  testator  in  his  lifetime,  at  his  request."  In  the  bill  of 
particulars,  we  find  this  item  :  "To  cash  contributed  by  me,  J.  Semmes 
Devecmon,  out  of  my  own  mone}',  to  defray  my  expenses  to  Europe 
and  return,  the  said  John  S.  Combs,  now  deceased,  having  promised 
me  in  1878  '  that  if  I  would  contribute  part  of  my  own  money  towards 
the  trip,  he  would  give  me  a  part  of  his,  and  would  make  up  to  me  m}' 
part,'  and  the  amount  below  named  is  my  contribution,  as  follows,"  etc. 
It  seems  to  us  that  this  statement  is  a  sufficient  description  of  a  cause 
of  action  covered  by  the  general  terms  of  the  fifth  count.  The  evidence 
ought  to  have  been  admitted. 

The  defendants  offered  the  following  prayer,  which  the  court  granted  : 

"  The  defendants,  by  their  attorneys,  pray  the  court  to  instruct  the 
jury  that  there  is  no  sufficient  evidence  in  this  case  to  entitle  the  plain- 
tiff to  recover  the  interest  claimed  in  the  bill  of  particulars,  marked, 
'  Exhibit  No.  1,  Bill  of  Particulars.'  " 

The  only  evidence  bearing  on  this  question  is  the  account  taken  from 
the  books  of  the  deceased,  which  was  offered  in  evidence  by  the  plain- 
tiff. This  account  showed  on  its  face  a  final  settlement  of  all  matters 
embraced  in  it.  In  the  absence  of  proof  showing  errors  of  some  kind, 
the  parties  must  be  concluded  by  it  in  all  respects.  We  think  the  prayer 
was  properly  granted. 

Judgment  reversed,  and  new  trial  ordered. 


190  KIRKSEY   V.   KIRKSEY.  [CHAP.   I. 

KIRKSEY  V.    KIRKSEY. 
Alabama  Supreme  Court,  January  Term,   1845. 

[Reported  in  8  Alabama,  1.31.] 

Error  to  the  Circuit  Court  of  Talladega. 

Assumpsit  by  the  defendant,  against  the  plaintiff  in  error.  The 
question  is  presented  in  this  Court,  upon  a  case  agreed,  which  shows 
the  following  facts:  — 

The  plaintiff  was  the  wife  of  defendant's  brother,  but  had  for  some 
time  been  a  widow,  and  had  several  children.  In  1840,  the  plaintiff 
resided  on  public  land,  under  a  contract  of  lease,  she  had  held  over, 
and  was  comfortably  settled,  and  would  have  attempted  to  secure  the 
land  she  lived  on.  The  defendant  resided  in  Talladega  County,  some 
sixty  or  seventy  miles  off.  On  the  10th  October,  1840,  he  wrote  to 
her  the  following  letter:  — 

"  Dear  Sister  Antillico,  —  Much  to  my  mortification,  I  heard  that 
brother  Henry  was  dead,  and  one  of  his  children.  I  know  that  your  situation 
is  one  of  grief  and  difficulty.  You  had  a  bad  chance  before,  but  a  great  deal 
worse  now.  I  should  like  to  come  and  see  you,  but  cannot  with  convenience 
at  present.  ...  I  do  not  know  whether  you  have  a  preference  on  the  place 
you  live  on  or  not.  If  you  had,  I  would  advise  you  to  obtain  your  preference, 
and  sell  the  land  and  quit  the  country,  as  I  understand  it  is  very  unhealthy, 
and  I  know  society  is  very  bad.  If  you  will  come  down  and  see  me,  I  will  let 
you  have  a  place  to  raise  your  family,  and  I  have  more  open  land  than  I  can. 
tend ;  and  ou  the  account  of  your  situation,  and  that  of  your  family,  I  feel  like 
I  want  you  and  the  children  to  do  well." 

Within  a  month  or  two  after  the  receipt  of  this  letter,  the  plaintiff 
abandoned  her  possession,  without  disposing  of  it,  and  removed  with 
her  family,  to  the  residence  of  the  defendant,  who  put  her  in  comfort- 
able houses,  and  gave  her  land  to  cultivate  for  two  years,  at  the  end 
of  which  time  he  notified  her  to  remove,  and  put  her  in  a  house,  not 
comfortable,  in  the  woods,  which  he  afterwards  required  her  to  leave. 

A  verdict  being  found  for  the  plaintiff,  for  two  hundred  dollars,  the 
above  facts  were  agreed,  and  if  they  will  sustain  the  action,  the  judg- 
ment is  to  be  affirmed,  otherwise  it  is  to  be  reversed. 

Ormond,  J.  The  inclination  of  my  mind  is,  that  the  loss  and 
inconvenience,  which  the  plaintiff  sustained  in  breaking  up,  and 
moving  to  the  defendant's,  a  distance  of  sixty  miles,  is  a  sufficient 
consideration  to  support  the  promise,  to  furnish  her  with  a  house, 
and  land  to  cultivate,  until  she  could  raise  her  family.  My  brothers, 
however,  think  that  the  promise  on  the  part  of  the  defendant  was  a 
mere  gratuity,  and  that  an  action  will  not  lie  for  its  breach.  The 
judgment  of  the  Court  below  must  therefore  be  reversed,  pursuant  to 
the  agreement  of  the  parties.^ 

1  The  decision  was  followed  in  Forward  v.  Armstead,  12  Ala.  124  ;  Bibb  v.  Freeman, 
59  Ala.  612.     In  the  latter  case  the  Court  said:  "It  is  often  a  matter  of  great  diffi- 


SECT,  n.l  PRESBYTERIAN  CHURCH  OF  ALBANY  V.   COOPER.  191 


PRESBYTERIAN  CHURCH  OF  ALBANY,  Appellant,  r. 
THOMAS  C.  COOPER  et  al.  as  Administratoks,  etc.,  Re- 
spondents. 

New  York  Court  of  Appeals,  January  25 — March  5,  1889, 

[Reported  in  112  New  York,  517.] 

Appeal  from  order  of  the  General  Term  of  the  Supreme  Court  in  the 
third  judicial  department,  made  the  first  Tuesda}'  of  May,  1887,  which 
reversed  a  judgment  in  favor  of  plaintiff,  entered  upon  the  report  of  a 
referee,  and  ordered  a  new  trial.     (Reported  below,  45  Hun,  453.) 

This  was  a  reference  under  the  statute  of  a  disputed  claim  against 
the  estate  of  Thomas  P.  Crook,  defendants'  intestate.  The  claim  arose 
under  a  subscription  paper,  of  which  the  following  is  a  cop}- :  — 

"  We,  the  undersigned,  hereby  severall}'  promise  and  agree  to  and 
with  the  trustees  of  the  First  Presbyterian  Church  in  this  cit}-  of  Albany, 
in  consideration  of  one  dollar  to  each  of  us  in  hand  paid  and  the  agree- 
ments of  each  other  in  this  contract  contained,  to  pay  on  or  before 
three  years  from  the  date  hereof  to  said  trustees  the  sum  set  opposite 
to  our  respective  names,  but  upon  the  express  condition,  and  not  other- 
wise, that  the  sum  of  $45,000  in  the  aggregate  shall  be  subscribed  and 
paid  in  for  the  purpose  hereinafter  stated ;  and  if  within  one  year  from 
this  date  said  sum  shall  not  be  subscribed  or  paid  in  for  such  purpose, 
then  this  agreement  to  be  null  and  of  no  effect.  The  purpose  of  this 
subscription  is  to  pa}'  off  the  mortgage  debt  of  $45,000,  now  a  lien 
upon  the  church  edifice  of  said  church,  and  the  subscription  or  contribu- 
tion for  that  purpose  must  equal  that  sum  in  the  aggregate  to  make  this 
agreement  binding. 

*'  Dated  May  18,  1884." 

culty  to  discern  the  line  which  separates  promises  creating  legal  obligations  from 
mere  gratuitous  agreements.  Each  case  depends  so  much  on  its  own  peculiar  facts 
and  circumstances  that  it  affords  but  little  aid  in  determining  other  cases  of  differing 
facts.  The  promise  or  agreement,  the  relation  of  the  parties,  the  circumstances  sur- 
rounding them,  and  their  intent,  as  it  may  be  deduced  from  these,  must  determine  the 
iuquiry.  If  the  purpose  is  to  confer  on  the  promisee  a  benefit  from  affection  and 
generosity,  the  agreement  is  gratuitous.  If  the  purpose  is  to  obtain  a  quid  pro  quo  — 
if  there  is  something  to  be  received,  in  exchange  for  which  the  promise  is  given,  the 
promise  is  not  gratuitous,  but  of  legal  obligation." 

See  also  in  accord,  Boord  v.  Boord,  Pelham  (So.  Aust.),  58.  But  see  cont7-a,  Shirley 
V.  Harris,  3  McLean,  330 ;  Berry  v.  Graddy,  1  Met.  (Ky.)  553  ;  Bigelow  v.  Bigelow,  95 
Me.  17  ;  Steele  v.  Steele,  75  Md.  477  ;  Adams  v.  Honness,  62  Barb.  326  ;  Richardson 
V.  Gosser,  26  Pa.  335. 

In  regard  to  the  enforcement  of  promises  relating  to  land,  unenforceable  at  law,  by 
courts  of  equity  in  order  to  prevent  a  fraud,  see  Pomeroy  on  Eq.  Jur.  §  1294 ;  Ames, 
Gas.  on  Eq.  Jur.  306-309. 


192   PRESBYTERIAN   CHURCH    OF    ALBANY   V.    COOPER,    [CHAP.    I. 

The  defendants'  intestate  made  two  subscriptions  to  this  paper,  —  one 
of  $5,000  and  the  other  of  8500.  He  paid  upon  the  subscription  $2,000. 
The  claim  was  for  the  balance. 

Matthew  Hale,  for  appellant. 

Walter  E,  Ward^  for  respondent. 

Andrews,  J.  It  i.s^we_think,  an  insuperable  objection  to  the  main- 
tenance of  this  action  that  there  was  no  valid  consuTeFatioh  to  uphold  the 

intestate.     It  is,  of  couiisevlunauestion- 


lD_can  be  maintained  to  enforce  a^giiatuitous  pxomise, 
lowever  worthy  the  object  intended  to  be  promoted.  The  performance 
of  such  a  promise  rests  wholly  on  the  will  of  the  person  making  it.  He 
can  refuse  to  perform,  and  his  legal  right  to  do  so  cannot  be  disputed, 
although  his  refusal  may  disappoint  reasonable  expectations,  or  may 
not  be  justified  in  the  forum  of  conscience.  By  the  terms  of  the  sub- 
scription paper  the  subscribers  promise  and  agree  to  and  with  the 
trustees  of  the  First  Presbyterian  Church  of  Albany,  to  pay  to  said  trus- 
tees, within  three  years  from  its  date,  the  sums  severally  subscribed  by 
them,  for  the  purpose  of  paying  off  "  the  mortgage-debt  of  $45,000  on 
the  church  edifice,"  upon  the  condition  that  the  whole  sum  shall  be 
subscribed  or  paid  in  within  one  year.  It  recites  a  consideration,  viz  , 
*'  in  consideration  of  one  dollar  to  each  of  us  (subscribers)  in  hand  paid 
and  the  agreement  of  each  other  in  this  contract  contained."  It  was 
shown  that  the  one  dollar  recited  to  have  been  paid  was  not  in  fact 
paid,  and  the  fact  that  the  promise  of  each  subscriber  was  made  by  rea- 
son of  and  in  reliance  upon  similar  promises  by  the  others  constitutes 
no  consideration  as  between  the  corporation  for  whose  benefit  the  prom- 
ise was  made  and  the  promisors.  The  recital  of  a  consideration  paid 
does  not  preclude  the  promisor  from  disputing  the  fact  in  a  case  like 
this,  nor  does  the  statement  of  a  particular  consideration  which,  on  its 
face,  is  insufficient  to  support  a  promise,  give  it  any  validity,  although 
the  fact  recited  ma}'  be  true. 

It  has  sometimes  been  supposed  that  when  several  persons  promise 
to  contribute  to  a  common  object,  desired  by  all,  the  promise  of  each 
may  be  a  good  consideration  for  the  promise  of  others,  and  this  although 
the  object  in  view  is  one  in  which  the  promisors  have  no  pecuniary-  or 
legal  interest,  and  the  performance  of  the  promise  b}-  one  of  the  prom- 
isors would  not  in  a  legal  sense  be  beneficial  to  the  others.  This  seems 
to  have  been  the  view  of  the  Chancellor  as  expressed  in  Hamilton 
College  V.  Stewart  when  it  was  before  the  Court  of  Errors  (2  Den. 
417),  and  dicta  of  judges  will  be  found  to  the  same  effect  in  other 
cases.  Trustees,  etc.,  v.  Stetson,  5  Pick.  508  ;  Watkins  v.  Eames,  9 
Cush.  537.  But  the  doctrine  of  the  Chancellor,  as  we  understand,  was 
overruled  when  the  Hamilton  College  case  came  before  this  court, 
1  N.  Y.  581,  as  have  been  also  the  dicta  in  the  Massachusetts  cases,  by 
the  court  in  that  State,  in  the  recent  case  of  Cottage  Street  Methodist 
Episcopal  Church  v.  Kendall,  121  Mass.  528.  The  doctrine  seems  to 
us  unsound  it  principle.    It  proceeds  on  the  assumption  that  a  stranger 


SECT,  n.]  PRESBYTERIAN  CHURCH  OF  ALBANY  V.   COOPER.  193 

both  to  the  consideration  and  the  promise,  and  whose  onl}-  relation  to 
the  transaction  is  that  of  donee  of  an  executory  gift,  may  sue  to  enforce 
the  payment  of  the  gratuity  for  the  reason  that  there  has  been  a  breach 
of  contract  between  the  several  promisors  and  a  failure  to  carry  out  as 
between  themselves  their  mutual  engagement.  It  is  in  no  proper  sense 
a  case  of  mutual  promises,  as  between  the  plaintiff  and  defendant. 

JlLlhgjdiisposition  of  this  case  we  must,  therefore,  reject  the  consid- 
eration  recited  in  the  subscription  paper  as  ground  for  supporting  the 
promise  of  the  defendants'  intestate,  the  money  consideratiQn^^because 
~it  Had  no  basis  in  fact,  and  the  mutual  promise  between  the  subscrib- 
.£rs ,  because  there  is  no  privity  of  contract  b^tyiee^  tlie^jlaiirtiff  and  tlie 
promisors,.  Some  consideration  must,  therefore,  be  found  other  than 
that  expressly  stated  in  the  subscription  paper  in  order  to  sustain  the 
action.  It  is  urged  that  a  consideration  ma}-  be  found  in  the  efforts  of 
the  trustees  of  the  plaintiff  during  the  year,  and  the  time  and  labor  ex- 
pended by  them  during  that  time,  to  secure  subscriptions  in  order  to 
fulfil  the  condition  upon  which  the  liability  of  the  subscribers  depended. 
There  is  no  doubt  that  labor  and  services,  rendered  by  one  part}'  at 
the  request  of  another,  constitute  a  good  consideration  for  a  promise 
made  by  the  latter  to  the  former,  based  on  the  rendition  of  the  service. 
But  the  plaintiff  encounters  the  diflSculty  that  there  is  no  evidence,  ex- 
press or  implied,  on  the  face  of  the  subscription  paper,  nor  any  evidence 
outside  of  it,  that  the  corporation  or  its  trustees,  did,  or  undertook  to 
do,  anything  upon  the  invitation  or  request  of  the  subscribers.  Nor  i» 
there  any  evidence  that  the  trustees  of  the  plaintiff,  as  representatives 
of  the  corporation,  in  fact  did  anything  in  their  corporate  capacit}^  or 
otherwise  than  as  individuals  interest'^d  in  promoting  the  general  object 
in  view. 

Leaving  out  of  the  subscription  paper  the  affirmative  statement  of 
the  consideration  (which,  for  reasons  stated,  may  be  rejected),  it  stands 
as  a  naked  promise  of  the  subscribers  to  pay  the  several  amounts  sub- 
scribed by  them  for  the  purpose  of  paying  the  mortgage  on  the  church 
propert}-,  upon  a  condition  precedent  limiting  their  liabilit}-.  Neither 
the  church  nor  the  trustees  promise  to  do  anything,  nor  are  the}'  re- 
quested to  do  an3'thing,  nor  can  such  a  request  be  implied.  It  was 
held  in  Hamilton  College  v.  Stewart,  1  N.  Y.  581,  that  no  such  request 
could  be  implied  from  the  terms  of  the  subscription  in  that  case,  in 
which  the  ground  for  such  an  implication  was,  to  say  the  least,  as 
strong  as  in  this  case.  It  may  be  assumed  from  the  fact  that  the  sub- 
scriptions were  to  be  paid  to  the  trustees  of  the  church  for  the  purpose 
of  paying  the  mortgage,  that  it  was  understood  that  the  trustees  were 
to  make  the  pa3-ment  out  of  the  moneys  received.  But  the  dut}'  to 
make  such  payment,  in  case  they  accepted  the  money,  would  arise  out 
of  their  duty  as  trustees.  This  duty  would  arise  upon  the  receipt  of  the 
money,  altliough  they  had  no  antecedent  knowledge  of  the  subscri[)tiun. 
They  did  not  assume  even  this  obligation  by  the  terms  of  the  subscrip- 
tion,   and    the   fact  that  the  trustees   applied    money,  paid  on  sub- 

\OL.  I.  — 16 


194   PRESBYTERIAN   CHURCH   OF   ALBANY   V.    COOPER.    [CHAP.   I. 

scriptions,  upon  the  mortgage  debt,  did  not  constitute  a  consideration 
for  tlie  promise  of  defendants'  intestate.  We  are  unable  to  distinguish 
this  case  in  principle  from  Hamilton  Colleger.  Stewart,  I  N.  Y.  581. 
There  is  nothing  tliat  can  be  urged  to  sustain  this  subscnption  that 
could  not,  with  equal  force,  have  been  urged  to  sustain  the  sul)scription 
in  that  case.  In  both  the  promise  was  to  the  trustees  of  the  respective 
corporations.  In  each  case  the  defendant  had  paid  part  of  his  subscrip- 
tion and  resisted  the  balance.  In  both,  part  of  the  subscri{)tion  had 
been  collected  and  applied  by  the  trustees  to  the  purpose  specified.  In 
the  Hamilton  College  case  (vvliich  in  that  respect  is  unlike  the  present 
one)  it  appeared  that  the  trustees  had'  incurredLrexpense  in  employing 
agents  to  procure  subscriptions  to  make  up  the  required  amount,  and  it 
was  shown,  also,  that  professors  had  been  employed  upon  the  strength 
of  the  fund  subscribed.  That  case  has  not  been  overruled,  but  has 
been  frequently  cited  with  approval  in  the  courts  of  this  and  other 
States.  The  cases  of  Barnes  v.  Ferine,  12  N.  Y.  18,  and  Roberts  v. 
Cobb,  103  id.  GOO,  are  not  in  conflict  with  that  decision.  There  is,  we 
suppose,  no  doubt  that  a  subscription  invalid  at  the  time  for  want  of 
consideration,  may  be  made  valid  and  binding  by  a  consideration  arising 
subsequently  between  the  subscribers  and  the  church  or  corporation  for 
whose  benefit  it  is  made.  Both  of  the  cases  cited,  as  we  understand 
them,  were  supported  on  this  principle.  There  was,  as  held  by  the 
court  ill  each  of  these  cases,  a  subsequent  request  by  the  subscriber  to 
the  promisee  to  go  and  render  service  or  incur  liabilities  on  the  faith  of 
the  subscription,  which  request  was  complied  with,  and  services  were 
rendered  or  liabilities  incurred  pursuant  thereto.  It  was  as  if  the  re- 
quest was  made  at  the  very  time  of  the  subscription,  followed  b}-  per- 
formance of  the  request  by  the  promisee.  Judge  Allen,  in  his  opinion 
in  Barnes  v.  Ferine,  said:  "The  request  and  promise  were,  to  ever}' 
legal  effect,  simultaneous,"  and  he  expressl}'  disclaims  an}'  intention  to 
interfere  with  the  decision  in  the  Hamilton  College  case.  In  the  pres- 
ent case  it  was  shown  that  individual  trustees  were  active  in  procuring 
subscriptions.  But,  as  has  been  said,  the}'  acted  as  individuals,  and 
not  in  their  official  capacity.  They  were  deeply  interested,  as  was  Mr. 
Crook,  in  the  success  of  the  effort  to  pay  the  debt  on  the  church,  and 
they  acted  in  unison.  But  what  the  trustees  did  was  not  prompted  by 
any  request  from  Mr.  Crook.  They  were  co-laborers  in  promoting  a 
common  object.  We  can  but  regret  that  the  intention  of  the  intestate 
in  respect  to  a  matter  in  which  he  was  deeply  interested,  and  whose 
interest  was  manifested  up  to  the  very  time  of  his  death,  is  thwarted 
by  the  conclusion  we  have  reached.  But  we  think  there  is  no  alterna- 
tive, and  that  the  order  should  be  affirmed. 

All  concur.  Order  affirmed  and  judgment  accordingly^ 

1  Charitable  subscriptions  have  been  held  supported  by  sufficient  consideration  on 
various  grounds :  — 

1.  If  the  work  for  which  the  subscription  was  made  has  been  done,  or  liability- 
incurred  iu  regard  to  such  work,  on  the  faith  of  the  subscription,  consideration  is  found 
in  that  fact.     Miller  v.  Ballard,  46  HI.  377  ;  Trustees  v.  Garvey  53  111.  401  ;  Des  Moines 


SECT.    II.]  MARTIN   V.   MELES.  195 


AUGUSTUS   B.    MARTIN  and  Others   v.   WILLIAM   MELES 

AND  Others. 

Supreme  Judicial  Court  of  Massachusetts,  March  20- 
May  23,   190L 

[Reported  in  179  Massachusetts,  114.] 

Holmes,  C.  J.  This  is  an  action  to  recover  the  contribution 
promised  by  the  following  paper,  which  was  signed  by  the  defend- 
ants and  others:    "Januarv  21^896,  We,  the  undersignedj_jnanu- 


Univ.  V.  Livingston,  57  la.  307,  65  la.  202;  McCabe  v.  O'Connor,  69  la.  134  ;  First 
Church  V.  Donnell,  110  la.  5  ;  Gittings  v.  Mayhew,  6  Md.  113  ;  Cottage  St.  Church  v. 
Kendall,  121  Mass.  528 ;  Sherwin  v.  Fletcher,  168  Mass.  413 ;  Pitt  v.  Gentle,  49  Mo.  74  ; 
James  v.  Clough,  25  Mo.  App.  147  ;  Ohio,  &c.  College  v.  Love's  Ex.,  16  Ohio  St.  20; 
Irwin  I'.  Lombard  University,  56  Ohio  St.  9.  (Compare  Johnson  v.  Otterbeiu  University, 
41  Ohio  St.  527)  ;  Hodges  v.  Nalty,  104  Wis.  464.  See  also  Lasar  v.  Johnson,  125  Cal. 
549 ;  Gait's  Ex.  i'.  Swain,  9  Gratt.  633. 

In  Beatty  v.  Western  College,  177  111.  280,  the  Court  enforced  the  promise,  because 
liabilities  had  been  incurred,  but  said  (p.  292),  "The  gift  will  be  enforced  upon  the 
ground  of  estoppel,  and  not  by  reason  of  any  valid  consideration  in  the  original 
undertaking." 

By  the  reasoning  of  these  cases  a  subscription  is  treated  as  an  offer.  Therefore 
until  work  has  been  done  or  liability  incurred  the  subscription  may  be  revoked  by 
death,  insanity,  or  otherwise.  Pratt  v.  Baptist  Soc,  93  111.  475  ;  Beach  v.  First  Church, 
96  111.  177  ;  Ilelfensteiu's  Est.,  77  Pa.  328 ;  First  Church  v.  Gillis,  17  Pa.  Co.  Ct.  614. 
See  also  Reimensnyder  v.  Gans,  110  Pa.  17. 

2.  It  is  held  in  other  jurisdictions  that  the  promise  of  each  suhscriber  is  supported 
by  the  promises  of  the  others.  Christian  College  v.  Hendley ,  49  Cal.  347  ;  Higert  v.  Trus- 
tees, 53  Ind.  326  ;  Petty  v.  Trustees,  95  Ind.  278  ;  Allen  v.  Duffie,  43  Mich.  1  ;  Congre- 
gational Soc.  V.  Perry,  6  N.  H.  164  ;  Edinboro  Academy  v.  Robinson,  37  Pa.  210.  See 
also  First  Church  v.  "Pungs,  126  Mich.  670  ;  Homan  v.  Steele,  18  Neb.  652. 

3.  It  has  been  held  that  the  acceptance  of  the  subscription  by  the  beneficiary  or  its 
representatives  imports  a  promise  to  apply  the  funds  properly,  and  this  promise  sup- 
ports the  subscribers'  promises.  Barnett  v.  Franklin  College,  10  Ind.  App.  103;  Col- 
lier i:  Baptist  Soc,  8  B.  Mon.  68  ;  Trustees  v.  Fleming,  10  Bush,  234  ;  Trustees  v. 
Haskell,  73  Me.  140;  Helfenstein's  Est.,  77  Pa.  328,  331  ;  Trustees  v.  Nelson,  24  Vt. 
189. 

4.  The  fact  that  other  subscriptions  have  been  induced  has  been  held  in  a  few  cases 
a  good  consideration.  Hanson  Trustees  ?'.  Stetson,  5  Pick.  506 ;  Watkins  v.  Eames, 
9  Cush.  537  ;  Ives  v.  Sterling,  6  Met.  310  (but  this  tlieory  was  discredited  in  Cottage 
St.  Church  V.  Kendall,  121  Mass.  528);  Comstock  v.  Howd,  15  Mich.  237  (but  see 
Northern,  &c.  R.  R.  v.  Eslow,  40  Mich.  222) ;  Irwiu  v.  Lombard  University,  56  Ohio 
St.  9. 

In  England  a  charitable  subscription  is  not  binding.  Re  Hudson,  54  L.  J.  Ch.  81 1 . 
See  also  Culver  v.  Banning,  19  Minn.  303;  Twenty-third  St.  Church  v.  Cornell,  117 
N.  Y.  601  (compare  Keuka  College  v.  Ray,  167  N.  Y.  96) ;  Montpelier  Seminary  v. 
Smith's  Estate,  69  Vt.  382  (compare  Grand  Isle  v.  Kinney,  70  Vt.  381). 

In  In  re  Hudson,  Pearson,  J.,  said  :  "  If  A.  says, '  I  will  give  you,  B.,  1000/.,'  and  B., 
in  reliance  on  that  promise,  spends  1000/.  in  buying  a  house,  B.  canuot  recover  the 
1000/.  from  A." 

In  a  few  cases  of  charitable  subscriptions  the  special  facts  show  that  the  promise 
■was  made  for  clearly  good  consideration.  Ropers  v.  Galloway  College,  64  Ark.  627; 
Lasar  v.  Johnson,  125  Cal.  549  ;  La  Fayette  Corporation  v.  Ryland,  80  Wis.  29. 


196  MARTIN   V.   MELES.  [CHAP.    I. 

facturers  of  leather,  promise  to  contribute  the  sum_of  five  hundred 
(500)   dollars  each,  andsuch  additional  sunis   as   a  r.ommittee  ap- — - 
"poTutednjy"  the  Massachusetts  Morocco^^anufacturers-^ssociation 
"may  require T^lnruTcase  shall  the  committee  demand  from  any  manu- 
facturer  oriTFm  a  total  of  subscriptions  to  exceed  the  sum  of  two    _ 
thousand   (2,000)   dollars,   such  sum  to  be  employed  for  legal   ajid_^ 
other  expenses  under  the  direction  of  the, committee,   in  defending 
Xnd  prote^ingour  interests  against  any  demauds.  or  -suits  growing 
out  of  Letters  Patent  for  Chrome  Tanniug,_and  in  case  of  suit  againaJL — 
any^f  us  the  committee  shall  take  charg^-tber^ot  and  ajjply  as  much 
ofjtheTuud  as  may  be  iieeded_io_the  expense  of  the  same/' 

The  plaintiffs  are  the  committee  referred  to  in  the  agreement,  and 
subscribers  to  it.  They  were  appointed  and  did  some  work  before 
the  date  of  the  agreement,  and  then  prepared  the  agreement  which 
was  signed  by  nine  members  of  the  association  mentioned,  and  by 
the  defendants,  who  were  not  members.  They  went  on  with  their 
work,  undertook  the  defence  of  suits,  and  levied  assessments  which 
were  paid,  the  defendants  having  paid  $750.  In  November,  1896, 
the  defendants'  firm  was  dissolved,  and  two  members  of  it,  Meles 
and  Auerbach,  ceased  tanning  leather.  The  defendants  notified  the 
plaintiffs  of  the  dissolution,  and  on  June  23,  1897,  upon  demand  for 
the  rest  of  their  subscription,  refused  to  pay  the  same.  The  main 
questions  insisted  upon,  raised  by  demurrer  and  by  various  excep- 
tions, axe  whether  the  defendants'  promise  is  to  be  regarded  as  entire 
and  as  supportedBy^  sufflcient  couijicTeranon. 

Itwillbe^bserved' thai  this  is  notlTsubscriptionJo  a  charity.  It 
is  a  business  agreement  for  purposesin  which  theparties  had  a  com- 
mon interest,  and  in  which  the  defendants  still  had  an  interest  after 
going  out  of  business,  as  they  still  were  liable  to  be  sued.  It  con- 
templates the  undertaking  of  active  and  more  or  less  arduous  duties 
by  the  committee,  and  the  making  of  expenditures  and  incurring  of 
liabilities  on  the  faith  of  it.  The  committee  by  signing  the  agree- 
ment promised  by  implication  not  only  to  accept  the  subscribers' 
money  but  to  perform  those  duties.  It  is  a  mistaken  construction 
to  say  that  their  promise,  or  indeed  their  obligation,  arose  only 
as  the  promise  of  the  subscribers  was  performed  by  payments  of 
money. 

If  then  the  committee's  promise  should  be  regarded  as  the  consid- 
eration, as  in  Ladies'  Collegiate  Institute  v.  French,  16  Gray,  196, 
201  (see  Maine  Central  Institute  v.  Haskell,  75  Maine,  140,  144),  its 
sufficiency  hardly  would  be  open  to  the  objection  which  has  been 
urged  against  the  doctrine  of  that  case,  that  the  promise  of  trustees 
to  apply  the  funds  received  for  a  mere  benevolence  to  the  purposes 
of  the  trust  imposes  no  new  burden  upon  them.  Johnson  v.  Otter- 
bein  University,  41  Ohio  St.  527,  531.  See  Presbyterian  Church  of 
Albany  V.  Cooper,  112  N.  Y.  517.  Neither  would  it  raise  the  ques- 
tion whether  the  promise  to  receive  a  gift  was  a  consideration  for  a 


SECT,    n.]  MARTIN   V.   MELES.  197 

promise  to  make  one.  The  most  serious  ^Qjabt  is  whether  the  promise 
of  the  committee  purports  to  be  the  consideration  for  the  subscriptions 
bva^true  iDtej;pretation  of  the  contract. 

Tr|  thp  liit.pr  T\ra^sa?nTirsett3  cTisfi:H''more  weight  has  been  laid  on  the 
incurring  of  other  liabilities  and  making  expenditures  on  the  faith  of 
the  (lefej]d ant's  promise  than  on  The  countev-prnmisp.  nf  the  plRin- 
W^.  !5ottage  Street  Church  v.  Kendall,  121  Mass.  528;  Sherwin  v. 
Fletcher,  168  -Mass.  413.  Of  course  the  mere  fact  that  a  promise__ 
relies  upon  a  promise  made  without  other  consideration  doesnot 
imp^xL-saJidity  to  what  beforewas  void.  Bragg  v.  DauTelsoirr  141 
Mass.  195,  196.  There  must  be  some  ground  for  saying  that  the 
acts  done  in  reliance  upon  the  promise  were  contemplated  by  the  form 
of  the  transaction  either  impliedly  or  in  terms  as  the  conventional 
inducement,  motive,  and  equivalent  for  the  promise.  But  courts  have 
gone  very  great  lengths  in  discovering  the  implication  of  such  an 
equivalence,  sometimes  perhaps  even  having  found  it  in  matters 
which  would  seem  to  be  no  more  than  conditions  or  natural  conse- 
quences of  the  promise.  There  is  the  strongest  reason  for  inter- 
preting a  business  agreement  in  the  sense  which  will  give  it  a  legal 
support,  and  such  agreements  have  been  so  interpreted.  Sherwin  v. 
Fletcher,  ubi  supra. 

What  we  have  said  justifies,  in  our  opinion,  the  finding  of  a  con- 
sideration either  in  the  promise  or  in  the  subsequent  acts  of  the  com- 
mittee, and  it  may  be  questioned  whether  a  nicer  interpretation  of  the 
contract  for  the  purpose  of  deciding  which  of  the  two  was  the  true 
one  is  necessary.  It  is  true  that  it  is  urged  that  the  acts  of  the 
committee  would  have  been  done  whether  the  defendants  had  promised 
or  not,  and  therefore  lose  their  competence  as  consideration  because 
they  cannot  be  said  to  have  been  done  in  reliance  upon  the  promise. 
But  that  is  a  speculation  upon  which  courts  do  not  enter.  When  an 
act  has  been  done,  to  the  knowledge  of  another  party,  which  purports 
expressly  to  invite  certain  conduct  on  his  part,  and  that  conduct  on 
his  part  follows,  it  is  only  under  exceptional  and  peculiar  circum- 
stances that  it  will  be  inquired  how  far  the  act  in  truth  was  the 
motive  for  the  conduct,  whether  in  case  of  consideration  (AYilliams 
V.  Carwardine,  4  B.  &  Ad.  621;  see  Maine  Central  Institute  v.  Has- 
kell, 75  Maine,  140,  145),  or  of  fraud.  Windram  v.  French,  151 
Mass.  547,  553.  In  Cottage  Street  Church  v.  Kendall,  121  Mass. 
528,  the  form  of  the  finding  in  terms  excluded  subsequent  acts  as 
consideration,  and  therefore  it  did  not  appear  whether  the  facts  were 
such  that  reliance  upon  the  promise  would  be  presumed.  In  Bridge- 
water  Academy  v.  Gilbert,  2  Pick.  579,  the  point  was  that  merely 
signing  a  subscription  paper  without  more  did  not  invite  expenditure 
on  the  faith  of  it.  See  Amherst  Academy  v.  Cowls,  6  Pick.  427, 
438;  Ives  v.  Sterling,  6  Met.  310,  316.  In  this  case  the  paper  indis- 
putably invited  the  committee  to  proceed. 

A  more  serious  difficulty  if  the  acts  are  the  consideration  is  that  it 


198  MARTIN   V.   MELES.  [CHAP.   I. 

seems  to  lead  to  the  dilemma  that  either  all  acts  to  be  done  by  the 
committee  must  be  accomplished  before  the  consideration  is  furnished, 
or  else  that  the  defendant's  promise  is  to  be  taken  distributively  and 
divided  up  into  distinct  promises  to  pay  successive  sums  as  succes- 
sive steps  of  the  committee  may  make  further  payments  necessary 
and  may  furnish  consideration  for  requiring  them.  The  last  view  is 
artificial  and  may  be  laid  on  one  side.  In  the  most  noticeable  cases 
where  a  man  has  been  held  entitled  to  stop  before  he  has  finished  his 
payments,  the  ground  has  not  been  the  divisibility  of  his  undertaking 
but  the  absence  of  consideration,  which  required  the  Court  to  leave 
things  where  it  found  them.  In  re  Hudson,  54  L.  J.  Ch.  811;  Pres- 
byterian Church  of  Albany  v.  Cooper,  112  N.  Y.  517.  As  against 
the  former  view,  if  necessary,  we  should  assume  that  the  first  sub- 
stantial act  done  by  the  committee  was  all  that  was  required  in  the 
way  of  acts  to  found  the  defendants'  obligation.  See  Amherst 
Academy  v.  Cowls,  6  Pick.  427,  438.  But  if  that  were  true,  it  would 
follow  that  as  to  the  future  conduct  of  the  committee  their  promise, 
not  their  performance,  was  the  consideration,  and  when  we  have  got 
as  far  as  that,  it  may  be  doubted  whether  it  is  not  simpler  and  more 
reasonable  to  set  the  defendants'  promise  against  the  plaintiffs' 
promise  alone.  We  are  inclined  to  this  view,  but  do  not  deem  a 
more  definitive  decision  necessary,  as  we  are  clearly  of  opinion  that, 
one  way  or  the  other,  the  defendants  must  pay. 

What  has  been  said  pretty  nearly  disposes  of  a  subordinate  point 
raised  by  the  defendants.  It  is  argued  that,  by  notice  pending  per- 
formance that  they  would  not  go  on  with  the  contract,  the  defendants, 
even  if  they  incurred  a  liability  to  damages,  put  an  end  to  the  right 
of  the  plaintiffs  to  go  on  and  to  recover  further  assessments,  as  in  the 
case  where  an  order  for  work  is  countermanded  at  the  moment  when 
performance  is  about  to  begin  under  the  contract  (Davis  v.  Bronson, 
2  No.  Dak.  300),  or  when  at  a  later  moment  the  plaintiff  was  directed 
to  stop  (Clark  v.  Marsiglia,  1  Den.  317),  followed  by  many  later  cases 
in  this  country.  See  Collins  v.  Delaporte,  115  Mass.  159,  162.  We 
assume  that  these  decisions  are  right  in  cases  where  the  continuance 
of  work  by  the  plaintiff  would  be  merely  a  useless  enhancement  of 
damages.  But  we  are  of  opinion  that  they  do  not  apply.  In  the  first 
place  it  does  not  appear  that  such  a  notice  was  given.  The  first 
definite  notice  and  the  first  breach  was  a  refusal  to  pay  on  demand. 
At  that  time  the  liability  was  fixed,  and  the  damages  were  the  sum 
demanded. 

In  the  next  place,  if  a  definite  notice  had  been  given  by  the  defend- 
ants in  advance  that  they  would  not  pay,  whatever  rights  it  might 
have  given  the  plaintiffs  at  their  election  (Ballou  v.  Billings,  136 
Mass.  307),  it  would  not  have  been  a  breach  of  the  contract  (Daniels 
t'.  Newton,  114  Mass.  530),  and  it  would  not  have  ended  the  right  of 
the  plaintiffs  to  go  on  under  the  contract  in  a  case  like  the  present, 
where  there  was  a  common  interest  in  the  performance,  and  where 


SECT.    II.]  WHITE   V.   BLUETT.  19S 

what  had  been  done  and  what  remained  to  do  probably  were  to  a  large 
extent  interdependent.  Davis  v.  Campbell,  93  la.  524;  Gibbons  u. 
Bente,  51  Minn.  499;  Cravens  v.  Eagle  Cotton  Mills  Co.,  120  Ind.  6. 
See  Frost  v.  Knight,  L.  R.  7  Ex.  Ill,  112;  Johnstone  v.  Milling, 
16  Q.  B.  D.  460,  470,  473;  Dalrymple  v.  Scott,  19  Out.  App.  477; 
John  A.  Roebling's  Sons'  Co.  v.  Lock  Stitch  Fence  Co.,  130  111.  660, 
666;  Davis  v.  Bronson,  2  No.  Dak.  300,  303. 

Before  leaving  the  case  it  is  interesting  to  remark  that  the  notion 
rightly  exploded  in  Cottage  Street  Church  v.  Kendall,  121  Mass.  528, 
530,  531,  that  the  subscription  of  others  than  the  plaintiff  may  be  a 
consideration,  seems  to  have  remained  unquestioned  with  regard  to 
agreements  of  creditors  to  accept  a  composition.  Compare  the 
remarks  of  Wells,  J.,  in  Perkins  v.  Lockwood,  100  Mass.  249,  250 
(Farrington  v.  Hodgdon,  119  Mass.  453,  457;  Trecy  i\  Jefts,  149 
Mass.  211,  212;  Emerson  ^^  Gerber,  178  Mass.  130),  with  what  he 
says  in  Athol  Music  Hall  Co.  v.  Carey,  116  Mass.  471,  474. 

Tt  I'q  nnf  qrprnpri  t,}]pt,  whatever  contract  was  made  was  not  made 
with  the  plaintiffs.     Sherwin  ;;.  Fletcher,  168  Mass.  413. 
'  ""  Demurrer  overruled  ;  exceptions  overruled.^ 


WHITE,  Executor  of  JOHN  BLUETT  u.  WILLIAM  BLUETT. 
In  the  Exchequer,  November  21,   1853. 

[Reported  in  23  Law  Journal,  New  Series,  Exchequer,  36.] 

The  declaration  contained  a  count  upon  a  promissory'  note  made  by 
the  defendant  payable  to  the  testator,  and  a  count  for  mone^'  lent. 

Plea,  as  to  the  said  flrst  count,  and  as  to  so  much  of  the  residue  of 
the  declaration  as  relates  to  mone}'  paj'able  b}'  the  defendant  to  the 
said  J.  Bluett  for  monej'  lent  to  the  defendant,  that  the  said  note  in  the 
said  first  count  mentioned  was  delivered  by  him  to  the  said  J.  Bluett 
as  in  the  declaration  supposed,  and  by  the  said  J.  Bluett  taken  and 
received  from  the  defendant  for  and  on  account  of  the  said  money  so 
payable  to  the  said  J.  Bluett  as  in  this  plea  mentioned,  and  the  causes 
of  action  in  respect  thereof,  and  h\  way  of  securing  the  same,  and  for  or 
on  account  of  no  other  debt,  claim,  matter,  or  thing  whatsoever.  And 
the  defendant  further  saith,  that  the  said  J.  Bluett  was  the  father  of 
the  defendant,   and  that  afterwards,  and  after   the   accruing   of  the 

^  Instances  of  subscriptions  for  business  purposes  are  Rieheliea  Hotel  Co.  v.  Tnteis 
national  Co.,  140  111.  248  ;  Fort  Wayne  Co.  v.  Miller,  131  Ind.  499  ;  Bryant's  Pond  Co. 
I'.  Felt,  87  Me.  234  ;  Hudson  Co.  v.  Tower,  156  Mass.  82,  161  Mass.  10;  Bohn  Mfg. 
Co.  V.  Lewis,  45  Minn.  164  ;  Gibbous  r.  Bente,  51  Minn.  500;  Homan  v.  Steele,  18  Neb. 
652  ;  Auburn  Works  v.  Shultz,  143  Pa.  256  ;  Gibbons  v.  Grinsel,  79  Wis.  365  ;  Sap* 
rior  Land  Co.  v.  Bickford,  93  Wis.  220 ;  Badger  Paper  Co.  v.  Rose,  95  Wis.  145. 


200  WHITE  V.   BLUETT.  [CHAP.   I. 

causes  of  action  to  which  this  plea  is  pleaded,  and  before  this  suit,  and 
in  the  lifetime  of  the  said  J.  Bluett,  the  defendant  complained  to  his 
said  father  that  he,  the  defendant,  had  not  received  at  his  hands  so 
much  money  or  so  many  advantages  as  the  other  children  of  the  said 
J.  Bluett,  and  certain  controversies  arose  between  the  defendant  and 
his  said  father  concerning  the  premises,  and  the  said  J.  Bluett  after- 
wards  admitted  and  declared  to  the  defendant  that  his,  the  defendant's, 
said  complaints  were  well  founded,  and,  therefore,  afterwards,  &c.,  it 
was  agreed  by  and  between  the  said  J.  Bluett  and  the  defendant,  that 
the  defendant  should  for  ever  cease  to  make  such  complaints,  and  that, 
in  consideration  thereof,  and  in  order  to  do  justice  to  the  defendant, 
and  also  out  of  his,  the  said  J.  Bluett's  natural  love  and  affection 
towards  the  defendant,  he,  the  said  J.  Bluett,  would  discharge  the  de- 
fendant of  and  from  all  liability  in  respect  of  the  causes  of  action  to 
which  this  plea  is  pleaded,  and  would  accept  the  said  agreement  on 
hisi,  the  defendant's,  part  in  full  satisfaction  and  discharge  of  the  said 
last-mentioned  causes  of  action  ;  and  the  defendant  further  said,  that 
afterwards,  and  in  the  lifetime  of  the  said  J.  Bluett,  and  before  this  suit, 
he,  the  said  J.  Bluett,  did  accept  of  and  from  the  defendant  the  said 
agreement  as  aforesaid,  in  full  satisfaction  and  discharge  of  such  men- 
tioned causes  of  action. 

Demurrer  and  joinder. 

Bavill,  in  support  of  the  demurrer. 

The  plea  is  not  good  as  to  either  count.  There  is  no  ronsidexation 
jor  giving'  np  the  claimon  the  money  count,  and  there  i&--BO-dis€ba,rg€- 

l^f  tliP  li^hjlit^on  t.hp  noie. 

[Parke,  B.  By  the  law  merchant  the  holder  may  discharge  the  ac- 
ceptor of  his  liabilit}',  if  he  sufficiently  expresses  his  intention  not  to 
insist  upon  payment ;  but  there  is  no  such  intention  here  averred.] 

T.  J.  Clark,  in  support  of  the  plea. 

The  plea  shows  an  agreement  by  the  defendant,  and  that  in  con- 
sideration of  such  agreement  the  father  agreed  to  forego  the  debt. 

[Parke,  B.     1^  an jigreement_by  a  father^  in  fonsidf^'^^'^n  that  his— 
SQiL_ffiiLLilQL-bore  him,  a  binding  contract?] 

The  plea  avers  that  the  complaints  were  well  founded.  The  ade- 
quacy of  the  consideration  for  a  promise  is  not  a  matter  of  inquiry.  .4 
.promise  is  a  trood  consideration  for  a  promise,  if  the  promisee  takes 
upon  himself  a  liabilitv  which  did  not  before  attach  to  him.  Here  the 
son  had  a  right  to  make"  the  complaints  mentioned,  and  his  agreeing  to 
forego  that  right  and  abstain  from  doing  what  he  legally  might  do  is  a 
good  consideration,  because  he  would  have  been  liable  to  an  action  if 
he  had  broken  his  promise.  It  falls  exactly  within  the  definition  of  a 
consideration  in  Chitty  on  Contracts,  p.  28,  as  the  defendant  subjected 
himself  to  an  obligation  by  his  promise,  and  also  to  a  detriment  by  not 
being  able  to  continue  his  well-grounded  complaints.  A  binding  ag;ree- 
ment  with  mutual  promises  is  a  good  accord.  He  cited  Com.  Dig.  tit. 
"  Accord"  (B)  4,  and  Haigh  v.  Brooks,  10  A.  &  E.  309. 


SECT.   n.J  WARREN   V.   HODGE.  201 

Pollock,  C.  B.  The  plea  is  clearly  bad.  By  the  argument  a  prin- 
ciple is  pressed  to  an  absurdity,  as  a  bubble  is  blown  until  it  bursts. 
Looking  at  the  words  merely,  there  is  some  foundation  for  the  argu- 
ment, and,  following  the  words  onlj',  the  conclusion  may  be  arrived  at. 
It  is  said,  the  son  had  a  right  to  an  equal  dis'^^'-ih'iV'^"  ^^  hifi  fa.M)pr'a 
propprtYi  "nd  did  complain  to  his  father  becausehe_had  not_an__eqiial 
share^and  said  to  bimT"  1  will  cease  to  cogrplam  if  ymi  will  not,  si^h 
upon  thjs  note."  Whereupon  the  father  said,  '' If  you  will  promise  me^ 
not  to  complain  I  will  give  up  the  note."  If  such  a  plea  as  this  could 
t»e"supported,  the  following  would  be  a  binding  promise  :  A  man  might 
copaplain  that  another  person  used  the  public  highway  more  than  he 
ought  to  do,  and  that  other  might  say,  "Do  not  complain,  and  I  will  give 
you  fiye^pour^ds."  It  is  ridiculous  to  suppose  that  such  promises  could 
ISe'Einding.  So,  if  the  holder  of  a  bill  of  exchange  were  suing  the  ac- 
ceptor, and  the  acceptor  were  to  complain  that  the  holder  had  treated 
him  hardly,  or  that  the  bill  ought  never  to  have  been  circulated,  and  the 
holder  were  to  saj',  "  Now,  if  you  will  not  make  any  more  complaints, 

1  will  not  sue  j'ou,"  such  a  promise  would  be  like  that  now  set  up. 
In  realit}',   there  was   no  consideration  whatever.     The  son  had    no 
right  to  complain,  for  the  father  might  make  what  disjribiition  oLiys^ 
p roperty  he  likpd  ;  ^"d  t.hp  son's  abstaining  from  doing  what  he  had 
uo  right  to  can  be  no  consideration. 

" — Pakke,  B.  f  am  of  the  same  upinron.  The_ agreement  could^jiot  be 
enforced_J^g^^^nst  the  defendant.  It  is  not  immaterial  also  to  observe, 
that  the  testator  did  not  give  the  note  up.  It  was  formerly  doubted 
whether  a  simple  agreement  could  be  pleaded  in  bar,  Lynn  v.  Bruce, 

2  H.  Bl.  317,  but  there  have  been  many  modern  cases  in  which  third 
persons  have  been  parties  to  the  agreement,  and  the  agreement  has  been 
held  to  be  an  answer,  and  it  may  be  that  such  an  agreement  would  do, 
although  third  persons  were  not  parties  to  it.  But  that  question  docs  not 
arise  here,  as  there  was  no  binding  agreement  at  all  by  the  defendant. 

Alderson,  B.  If  this  agreement  were  good,  there  could  be  no  such 
thing  as  a  nudum  pactum.  There  is  a  consideration  on  one  side,  and 
it  is  said  the  consideration  on  the  other  is  the  agreement  itself:  if  that 
were  so,  there  could  never  be  a  nudum  pactum. 

Platt,  B.,  concurred. 

Judgment  for  the  plaintiff^. 


HORACE   S.    WARREN   v.   AMASA   S.    HODGE. 
Supreme  Judicial  Court  of  Massachusetts,  October  4,   1876. 

[Reported  in  121  Massachuxetts,  106.] 

Contract    to    recover    $184    for    work    and    labor.      Writ    dated 
April  12,-  1875. 

At  the  trial  in  the  Superior  Court,  before  Putkam,  J.,  the  defend- 


202  WAKKEN   V.   HODGE.  [CHAP.    I. 

ant  contended  that  the  action  was  prematurely  brought,  and  intro- 
duced evidence  that,  on  or  about  March  17,  1875,  being  about  two 
mouths  after  the  plaintiff  had  left  his  employ,  and  after  the  time 
when  the  amount  was  due,  the  plaintiff  called  at  his  office  and 
demanded  the  amount  due  him,  and  said  that,  if  the  defendant 
would  give  him  $25  on  account,  he  would  wait  until  May  1  for  the 
balance,  and  he  thereupon  paid  him  $25  on  account,  and  the  plaintiff 
then  agreed  to  wait  until  May  1,  1875,  for  the  balance  due  him. 

The  plaintiff  asked  the  judge  to  rule  that  an  agreement  on  his  part 
to  wait  until  some  future  day  for  his  pay  (the  same  being  due  and 
payable)  would  be  null  and  void  unless  there  was  some  consideration 
for  the  pi'omise;  and  that  a  payment  of  $25  bj'  the  defendant  to  him 
on  account  (the  whole  amount  being  then  due)  would  not  constitute  a 
consideration  for  such  an  agreement,  and  that,  notwithstanding  such 
an  agreement,  he  could  maintain  his  action  brought  before  the  future 
day.  But  the  judge  declined  so  to  rule,  and  instructed  the  jury  as 
follows:  "\Ull^ft  jury  ^"'^^  tlTa^tbeagreement  was  that,  iLtJifi-d££ead^ 
ant  wouldj2ayJniiL^''^5  ""  thelspoV-b^^-would  wait-fof-tbo-Jjalance  of 
his  pay  till  a  day  after_the  date  of  jthe  writ,  and  the  defendant  made 
such  paymenLiuid^jfdied,  upon_thaLagxe&m€a^t^pd^  neglected  _to^ay^ 
the  plaintiff  in  consequence,  that^jwhether  there_:gaa_a-Con8ideration 
tUerefor  or  not,  the  action  jiad  been  prematurely  brought,  and_tiie-^ — 
plaintiff  cannot  recov^er."  The  jury  returned  a  verdict  for  the  de- 
fendantTliud  the  plaintiff  alleged  exceptions. 

By  the  Court.  It  is  too  well  settled  to  require  discussion  or 
reference  to  authorities,  that  .an  agreement  to  forbear  to  sue  upon 
a  debt  already  due  and  payable,  for  noother  consideratiou_tban  the 
payment  of  part  of  the  debtj_is__withourTegaL.cou^^ 
not  be  availed  ot'"~^by7the  debtor,  eithex_by^way  of  contract  or  of 
estoppel. 

Of  the  cases  cited  for  the  defendant,  Harris  v.  Brooks,  21  Pick. 
195,  was  a  case  of  a  surety,  and  Fleming  v.  Gilbert,  3  Johns.  528,  a 
case  of  modification  by  agreement  of  the  way  of  performing  an  obli- 
gation to  discharge  a  mortgage. 

Exceptions  sustained.''- 

1  "  Liening  v.  Gould,  13  Cal.  598  ;  Solary  v.  Stultz,  22  Fla.  263  ;  Holliday  v.  Poole, 
77  Ga.  159;  Bush  v.  Rawlins,  89  Ga.  117  ;  Phoenix  Co.  v.  Rink,  110  111.  538;  Shook 
V.  State,  6  Ind.  461  ;  Dare  v.  Hall,  70  Ind.  545  ;  Davis  v.  Stout,  84  Ind.  12  ;  Potter  v. 
Green,  6  Allen,  442 ;  Kern  v.  Andrews,  59  Miss.  39 ;  Price  v.  Cannon,  3  Mo.  453  ; 
Tucker  v.  Bartle,  85  Mo.  114  ;  Russ  v.  Hobbs,  61  N.  H.  93  ;  Parmalee  v.  Thompson, 
45  N.  Y.  58  ;  TurnbuU  v.  Brock,  31  Ohio  St.  649  ;  Yeary  v.  Smith,  45  Tex.  56, 72,"  ace. 
Professor  Ames,  12  Harv.  L.  R.  526. 


SECT. 


& 


(^. 


FOAKES   V.   BEER. 


203 


JOHN   WESTON  FOAKES,   Appellant,   v.   JULIA  BEER, 

Respondent. 
In  the  House  of  Lords,  May  16,  1884. 

[Reported  «n  9  Appeal  Cases,  605.] 

Appeal  from  an  order  of  the  Court  of  Appeal. 

On  the  11th  of  August,  1875,  the  respondent  recovered  judgment 
against  the  appellant  for  £2.077  lis.  2d.  for  debt  and  £13  1.9.  lOd.  for 
costs.  On  the  21st  of  December,  1876,  a  memorandum  of  agreement 
was  made  and  signed  by  the  appellant  and  respondent  in  the  following 
terms :  — 

"  Whereas  the  said  John  Weston  Foakes  is  indebted  to  the  said  Julia 
Beer,  and  she  has  obtained  a  judgment  in  Her  Majesty's  High  Court  of 
Justice,  Exchequer  Division,  for  the  sum  of  £2,090  19s.  And  whereas 
the  said  John  Weston  Foakes  has  requested  the  said  Julia  Beer  to  give 
him  time  in  which  to  pay  such  judgment,  which  she  has  agreed  to  do 
on  the  following  conditions  :  Now^this_agreemeiit  witnesseth  that  in 
consideration  of  thesauLJjoha  JS^ton  Foakes  paying  to  the  said  Julia" 
Beef^n'The  signint;  of  jhis  agreement  the  sum_of£500,  the  receipt 
whereof  she  doth  hereby  acknowledge  in  part  satisfaction  of  the  said 
judgment  debt  of  £2,090  19s.,  andon  j5ondition  of  his  paying  to  her  or 
her  executmaj_aclministratoi'Sv_assigns,  or  nominee  the-sum  of  £_150  on 
the  1st  day  of  July  and  the  1st  day  of  January  or  within  one  calendar 
month  after  each  of  the^said  da^s respectively  in  every  j'ear  until  the 
whole  of  the  said^  sum  of  £2,090  19s.  shall  have Jieen  full}'paid_and_ 
satisfied,  tUe  lirst  of  such  pa\jnents  to  be  made  on  tlie^.st_day  of  July 
next,  then  she_ihe  salcTJulia  Beer  hereby  imderlakes  and__agrees  that 
sTie,  her  executors,  administrator.Sj  or  assigns,  will  not  take  any  pro; 
ceedings  whatever  on  the  saidjiidffmeftfcr^' 

The  respondent  having,  in  June,  1882,  taken  out  a  summons  for  leave 
to  proceed  on  the  judgment,  an  issue  was  directed  to  be  tried  between 
the  respondent  as  plaintitt'  and  the  appellant  as  defendant  whether  any 
and  what  amount  was  on  the  1st  of  July,  1882,  due  upon  the  judgment. 

At  the  trial  of  the  issue  before  Cave,  J.,  it  was  proved  that  the  whole 
sum  of  £2,090  19s.  had  been  paid  by  instalments,  but  the  respondent 
claimed  iuterest.  The  jury  under  his  Lordship's  direction  found  that  the 
appellant  had  paid  all  the  sums  which  by  the  agreement  of  the  21st  of 
December,  1876,  he  undertook  to  paj',  and  within  the  times  therein  speci- 
fied. Cave,  J.,  was  of  opinion  that  whether  the  judgment  was  satisfied 
or  not,  the  respondent  was,  by  reason  of  the  agreement,  not  entitled  to 
issue  execution  for  an}'  sum  on  the  judgment. 

The  Queen's  Bench  Division  (Watkin,  AVilliams,  and  Mathew,  JJ.,) 
discharged  an  order  for  a  new  trial  on  the  ground  of  misdirection. 

The  Court  of  Appeal  (Brett,  M.  R.,  Lindle}',  and  Fry,  L.  JJ.)  re- 


204  FOAKES   V.   BEER.  [CHAP.    I. 

versed  that  decision  and  entered  judgment  for  the  respondent  for  the 
interest  due,  willi  costs. 

W.  H.  Holl,  Q.  C,  for  the  appellant. 

Bombas,  Q.  C.  (GasJcell  with  him),  for  the  respondent. 

My  conclusion  is,  that  the  order  appealed  from  should  be  affirmed, 
and  the  appeal  disuiissed  with  costs,  and  I  so  move  your  Lordships. 

Lord  Blackburn.^  My  Lords,  the^  first  qnpgt.ion  miaprl  is  as  to  what 
was  the  true  construction  of  the  memorandum  of  agreement  made  on 
the  21st  of  December,  1876.  What  was  it  that  the  parties  b}'  that 
writing  ao;reed  to.? 

The  appellants  contend  that  the}-  meant  that  on  payment  down  of 
£500,  and  payment  within  a  month  after  the  1st  day  of  July  and 
the  first  day  of  January  in  each  ensuing  year  of  £150,  until  the  sum  of 
j;^2,090  195.  was  paid,  the  judgment  for  that  sum  and  interest  should 
be  satisfied  ;  for  an  agreement  to  take  no  proceedings  on  the  judgment 
is  equivalent  to  treating  it  as  satisfied.  This  construction  of  the 
memorandum  rcfjniros  tint  nftor  thetontli  payment  of  £150  there  should 
be  a  further  payment  of  £90  19s.  made  within  the  next  six  months. 
This  is  the  construction  which  all  three  courts  below  have  put  upon  the 
memorandum. 

Tlie  respondent  contends  that  the  true  construction  of  the  memoran- 
dum was  that  time  was  to  be  given  on  those  conditions  for  five  years, 
the  judgment  being  on  default  of  any  one  payment  enforceable  for  what- 
ever was  still  unpaid,  with  interest  from  the  date  the  judgment  was 
signed,  hn^t,  fhnt  t.hp  int.pi-pst,  xyas  not  inten(]ed  to  ba-Cmgiven ^_all^ 

If  this  is  the  true  construction  of  the  agreement  the  judgment  ap- 
pealed against  is  right  and  should  be  affirmed,  whether  the  reason  on 
whicii  the  Court  of  Appeal  founded  its  judgment  was  right  or  not.  I 
am,  however,  of  opinion  that  the  courts  below,  who  on  this  point  were 
unanimous,  put  the  true  construction  on  the  memorandum.  I  do  not 
think  the  question  free  from  difficulty.  It  would  have  been  easy  to  have 
expressed,  in  unmistakable  words,  that  on  payment  down  of  £500,  and 
punctual  payment  at  the  rate  of  £300  a  year  till  £2,090  19s.  was  paid, 
the  judgment  should  not  be  enforced  either  for  principal  or  interest ;  or 
language  might  have  been  used  which  should  equall}'  clearly  have  ex- 
pressed that,  though  time  was  to  be  given,  interest  was  to  be  paid  in 
addition  to  the  instalments.  The  words  actually  used  are  such  that  I 
think  it  is  quite  possible  that  the  two  parties  put  a  difl'erent  construc- 
tion on  the  words  at  the  time  ;  but  I  think  that  the  words  ''  till  the  said 
sum  of  £2,090  19s.  shall  haveJifisn  fully  paid  and  satisfied"  cannot^ 
construed  as  meaning  "  till  that  sumTwittT  interest  from  the  day  judg- 
ment  wa^  sig^nedTshall  have"been_full^paid  and~satisged7^nor  can  xhe 
promise  "  not  to  take  any  proceedings  whatever  on  the  judgment"  be 
cut  down  to  meaning  any  proceedings  except  those  necessary  to  enforce 
payment  of  interest. 

1  The  Earl  of  Selborne,  L.  C,  and  Lords'Watson  and  Fitzgerald  deliTered  concur- 
ring opinions. 


SECT,  n.]  FOAKES  V.   BEER.  205 

I  think,  therefore,  that  it  is  neeessar3'to  consider  the  ground  on  which 
the  Court  of  Appeal  did  base  their  judgment,  and  to  say  whether  the 
agreement  can  be  enforced.  I  construe  it  as  accepting  and  takin{y£r)00 
in  satisfaction  of  the  whole  £2,090  19s.,  subject  to  the  condition  that 
unless  the  balance  of  tjigj^ri  n ci pal  debt  was  paid  by  the  instalments,  the 
whole  might  be  enforced  with  interest.  If,  instead  of  £500  in  monej-, 
it  had  been  a  horse  valued  at  £500,  or  a  promissor}-  note  for  £500,  the 
authorities  are  that  it  would  have  been  a  good  satisfaction,  but  it  is 
said  to  be  otherwise  as  it  was  mone_y. 

This  is  a  question,  I  think,  of  difficulty. 

In  Coke,  Littleton  212  b.  Lord  Coke  says  :  "  where  the  condition  is 
for  payment  of  £20,  the  obligor  or  feoffor  cannot  at  the  time  ap- 
pointed pa}'  a  lesser  sum  in  satisfaction  of  the  whole,  because  it  is 
apparent  that  a  lesser  sum  of  mone}'  cannot  be  a  satisfaction  of  a 
greater.  ...  If  the  obligor  or  feoffor  pay  a  lesser  sum  either  before 
the  day  or  at  another  place  than  is  limited  by  the  condition,  and  the 
obligee  or  feoffee  receiveth  it,  this  is  good  satisfaction."  For  this  he 
cites  Pinnel's  case,  5  Rep.  117  a.  That  was  an  action  on  a  bond  for 
£16,  conditioned  for  the  payment  of  £8  10s.  on  the  11th  of  November, 
1600.  riea  that  defendant,  at  plaintiff's  request,  before  the  said  day, 
to  wit,  on  the  1st  of  October,  paid  to  the  plaintiff  £5  2.s'.  2d.^  which  the 
plaintiff  accepted  in  full  satisfaction  of  the  £8  10s.  The  plaintiff  had 
judgment  for  the  insufficient  pleading.  But  though  this  was  so,  Lord 
Coke  reports  that  it  was  resolved  by  the  whole  Court  of  Common  Pleas 
' '  that  payment  of  a  lesser  sum  on  the  day  in  satisfaction  of  a  greater 
cannot  be  any  satisfaction  for~the  whole,  because  it  appears  to  the, 
judges  that  b}'  no  possibility  a  lesser  sum  can  be  a  satisfaction  to  the 
plaintiff  foi;^a  greater  sum  :  but  the  gift  of  a  horse,  hawk,  or  robe,  &c., 
in  satisfaction  is  good,  for  it  shall  be  intended  that  a  horse,  hawk,  or  robe, 
&c.,  might  be  more  beneficial  to  the  plaintiff  than  the  money  ;  in  respect 
of  some  circumstance,  or  otherwise  the  plaintiff  would  not  have  accepted 
of  it  in  satisfaction.  But  when  the  whole  sum  is  due,  by  no  intendment 
the  acceptance  of  parcel  can  be  a  satisfaction  to  the  plaintiff ;  but  iu 
the  case  at  bar  it  was  resolved  that  the  payment  and  acceptance  of 
parcel  before  the  da}'  in  satisfaction  of  the  whole  would  be  a  good  sat- 
isfaction in  regard  of  circumstance  of  time  ;  for  peradventure  parcel  of 
it  before  the  day  would  be  more  beneficial  to  him  than  the  whole  at 
the  day,  and  the  value  of  the  satisfaction  is  not  material ;  so  if  I  am 
bound  in  £20  to  pay  you  £10  at  Westminster,  and  you  request  me  to 
pa}'  you  £5  at  the  day  at  York,  and  you  will  accept  it  in  full  satisfac- 
tion for  the  whole  £10,  it  is  a  good  satisfaction  for  the  whole,  for  the 
expenses  to  pa}'  it  at  York  is  sufficient  satisfaction." 

There  are  two  things  here  resolved  :   First,  that  where  a  matter  [jaid  and 
accepted  in  satisfaction  of  a  debt  certain  might  by  any  possibility  be  more 
beneficial  to  the  credltQr  than  his  debt,  the  court  will_not_inquire  into_ 
the  adeqnacvof^tliR  considc^ration.     Ifjhe  creditor,  without  any  fraud, _ 
accepted  it  in^^satiafaction  when  it  was  not  a  sufficient  satisfaction  it  waa 


206  FOAKES   V.   BEER.  [CHAP.    I. 

hisjownjaujt-  And  that  payment  before  the  da}'  might  be  more  bene- 
^cial,  and  consequently  that  the  plea  was  in  substance  good,  and  this 
must  have  been  decided  in  the  case. 

There  is  a  second  point  stated  to  have  been  resolved,  viz.:  "That 
payment  of  a  lesser  sum  on  the  day  cannot  be  an}'  satisfaction  of  the 
whole,  because  it  appears  to  tlie  judges  that  by  no  possibility  a  lesser 
sum  can  be  a  satisfaction  to  the  plaintiff  for  a  greater  sum."  This  was 
certainly  not  necessary  for  the  decision  of  the  case ;  but  though  the 
resolution  of  the  Court  of  Common  Pleas  was  only  a  dictum,  it  seems  to 
me  clear  that  Lord  Coke  deliberately  adopted  the  dictwn,  and  the  great 
weight  of  his  authority  makes  it  necessary  to  be  cautious  before  saying 
that  what  he  deliberately  adopted  as  law  was  a  mistake  ;  and  though  I 
cannot  find  that  in  any  subsequent  case  this  dictum  has  been  made  the 
ground  of  the  decision,  except  in  Fitch  v.  Sutton,  5  East,  230,  as  to 
which  I  shall  make  some  remarks  later,  and  in  Down  v.  Hatcher,  10  A. 
&,  E.  121,  as  to  which  Parke,  B.,  in  Cooper  v.  Parker,  15  C.  B.  828, 
said,  "  Whenever  the  question  may  arise  as  to  whether  Down  v.  Hatcher, 
10  A.  «fe  E.  121,  is  good  law,  I  should  have  a  great  deal  to  say  against  it," 
yet  there  certainly  are  cases  in  which  great  judges  have  treated  the 
dictum  in  Pinnel's  case,  5  Rep.  117  a,  as  good  law. 

For  instance,  in  Sibree  v.  Tripp,  15  M.  &  W.  33,  37,  Parke,  B.,  says : 
"  It  is  clear  if  the  claim  be  a  liquidated  and  ascertained  sum,  payment 
of  part  cannot  be  satisfaction  of  the  whole,  although  it  may,  under  cer- 
tain circumstances,  be  evidence  of  a  gift  of  the  remainder."  And 
Alderson,  B.,  in  the  same  case  says  :  "  It  is  undoubtedly  true  that  pay- 
ment of  a  i)ortion  of  a  liquidated  demand,  in  the  same  manner  as  the 
whole  liquidated  demand  which  ought  to  be  paid,  is  payment  only  in 
part,  because  it  is  not  one  bargain,  but  two  ;  viz.,  payment  of  part,  and 
an  agreement  without  consideration  to  give  up  the  residue.  The  courts 
might  very  well  have  held  the  contrary,  and  have  left  the  matter  to  the 
agreement  of  the  parties,  but  undoubtedly  the  law  is  so  settled."  After 
such  strong  expressions  of  opinion,  I  doubt  much  whether  any  judge 
sitting  in  a  court  of  the  first  instance  would  be  justified  in  treating  the 
question  as  open.  But  as  this  has  very  seldom,  if  at  all,  been  the 
ground  of  the  decision  even  in  a  court  of  the  first  instance,  and  cer- 
tainly never  been  the  ground  of  a  decision  in  the  Court  of  Exchequer 
Chamber,  still  less  in  this  House,  I  did  think  it  open  in  your  Lordship's 
House,  to  reconsider  this  question.  And,  notwithstanding  the  very 
high  authority  of  Lord  Coke,  I  think  it  is  not  the  fact  that  to  accept 
prompt  payment  of  a  part  only  of  a  liquidated  demand,  can  never  be 
more  beneficial  than  to  insist  on  payment  of  the  whole.  And  if  it  be 
not  the  fact,  it  cannot  be  apparent  to  the  judges. 

I  will  first  examine  the  authorities.  If  a  defendant  pleaded  the  gen- 
eral issue,  the  plaintiff  could  join  issue  at  once,  and  if  the  case  was  not 
defended  get  his  verdict  at  the  next  assizes.  But  by  pleading  a  special 
plea,  tlie  plaintiff  was  obliged  to  reply,  and  the  defendant  often  caused 
the  plaintiff,  merely  by  the  delay  occasioned  by  replying  to  lose  an 
assize.     If  the  rephcation  was  one  to  which  he  could  demur  he  made 


SECT,   n.]  FOAKES    V.   BEER.  207 

this  sure.  Strangely  enough  it  seems  long  to  have  been  thought  that 
if  the  defendant  kept  within  reasonable  bounds  neither  he  nor  his  law- 
yers were  to  blame  in  getting  time  in  this  wa}'  b}-  a  sham  plea,  —  that  a 
chattel  was  given  and  accepted  in  satisfaction  of  the  debt.  The  recog- 
nized forms  were  giving  and  accepting  in  satisfaction  a  beaver  hat. 
Young  P.  Rudd,  5  Mod.  86  ;  or  a  pipe  of  wine,  3  Chit.  Plead.  7th  ed. 
9'2.  All  this  is  now  antiquated.  But  whilst  it  continued  to  be  the 
practice,  the  pleas  founded  on  the  first  part  of  the  resolution  in  PinneFs 
case,  5  Rep.  117  a.,  were  ver}-  common,  and  that  law  was  perfectlj- trite. 
No  one  for  a  moment  supposed  that  a  beaver  hat  was  really  given  and 
accepted  ;  but  every  one  knew  that  the  law  was  that  if  it  was  realh' 
given  and  accepted  it  was  a  good  satisfaction.  But  special  pleas 
founded  on  the  other  resolution  in  Pinnel's  case  on  what  I  have 
A'entured  to  call  the  dictum,  was  certainh'  not  common.  I  doubt  if  a 
real  defence  of  this  sort  was  ever  speciall}'  pleaded.  "When  there  really 
was  a  question  as  to  whether  a  debt  was  satisfied  b}'  a  payment  of 
a  smaller  sum  the  defendant  pleaded  the  general  issue,  and  if  it  was 
proved  to  the  satisfaction  of  the  jury  that  a  smaller  sum  had  been  paid 
and  accepted  in  satisfaction  of  a  greater,  if  objection  was  raised  the 
jury  might  perhaps,  as  suggested  by  Holroyd,  J.,  in  Thomas  f.  Heathorn, 
2  B.  &  C.  482,  find  that  the  circumstances  were  such  that  the  legal  effect 
was  to  be  as  if  the  whole  was  paid  down  and  a  portion  thrown  back  as 
a  god's-penn}'.  This,  however,  seems  to  me  to  be  an  unsatisfact(jry  and 
artificial  wa}^  of  avoiding  the  effect  of  the  dictum,  and  it  could  not  be 
applied  to  such  an  agreement  as  that  now  before  this  House. 

For  whatever  reason  it  was,  I  know  of  no  case  in  which  the  question 
was  raised  whether  a  paj'ment  of  a  lesser  sum  could  be  satisfaction  of  a 
liquidated  demand  from  Pinnel's  case  down  to  Cumber  v.  Wane,  5  Geo.  1, 
1  Sm.  L.  C.  8th  ed.  357,  a  period  of  115  ^ears. 

In  Adams  v.  Tapling,  4  Mod.  88,  where  the  plea  was  bad  for  man}- 
other  reasons,  it  is  reported  to  have  been  said  bj-  the  court  that:  "  In 
covenant  when  the  damages  are  uncertain,  and  to  be  recovered,  as  in 
this  case,  a  lesser  thing  ma}'  be  done  in  satisfaction,  and  there  '  accord 
and  satisfaction '  is  a  good  plea."  No  doubt  this  was  one  of  the  cases 
in  which  Parke,  B.,  would  have  cited  in  support  of  his  opinion  that 
Down  V.  Hatcher,  10  A.  &  E.  121,  was  not  good  law.  The  court  are 
said  to  have  gone  on  to  recognize  the  dictum  in  Pinnel's  case,  5  Rep. 
117  a,  or  at  least  not  to  dissent  from  it,  but  it  was  not  the  ground  of 
their  decision.  In  every  other  reported  case  which  I  have  seen  the 
question  arose  on  a  demurrer  to  a  replication  to  what  was  obviously  a 
sham  or  a  dilator}'  plea. 

Some  doubt  has  been  made  as  to  what  the  pleadings  in  Cumber 
V.  "Wane  really  were.  I  have  obtained  the  record.  The  plea  is 
that  after  the  promises  aforesaid,  and  before  the  issuing  of  the  writ,  it 
was  agreed  between  the  said  George  and  Edward  Cumber  that  he,  the 
said  George,  "  daret  eidem  Edwardo  Cumber  quandm  notam  in  script 
vocatam  '  a  promissory  note '  manu  propria  ipsius  Georgii  subscript  pr. 


208  FOAKES    V.    BEER.  [CHAP.    1. 

solucon  eidem  Edwardo  Cumber  vel  ordiiii  quinque  librarura,"  fourteen 
days  after  date,  in  full  satisfaction  and  exoneration  of  the  premises  and 
promises,  which  said  note  in  writing  the  said  George  then  gave  to  the 
said  Edward  Cumber,  and  the  said  Edward  Cumber  then  and  there 
received  from  the  said  George  the  said  note  in  full  satisfaction  and  dis- 
charge of  the  premises  and  promises. 

The  replication  is  that  "the  said  George  did  not  give  to  him,  Ed- 
ward, an}'  note  in  writing  called  a  promissor}'  note  with  the  hand  of 
him,  George,  subscribed  for  the  payment  to  him,  Edward,  or  his  order 
of  £5,  fourteen  days  after  date  in  full  satisfaction  and  discharge  of  the 
premises  and  promises."  To  this  there  is  a  demurrer  and  judgment 
in  the  Common  Pleas  for  the  plaintiff  "  that  the  replication  was  good 
in  law." 

The  reporter,  oddly  enough,  says  there  was  an  immaterial  replication. 
The  effect  of  the  replication  is  to  put  in  issue  the  substance  of  the  de- 
fence, namely,  the  giving  in  satisfaction  ;  Young  v.  Rudd,  5  Mod.  86, 
and  certainly-  that  was  not  immaterial.  But  for  some  reason,  I  do  not 
stop  to  inquire  what,  Pratt,  C.  J.,  prefers  to  base  the  judgment  affirm- 
ing that  of  the  Common  Pleas  on  the  supposed  badness  of  the  plea 
rather  than  on  the  sufficiency  of  the  replication.  It  is  impossible  to 
doubt  that  the  note,  which  it  is  averred  in  the  plea  was  given  as  satisfac- 
tion, was  a  negotiable  note.  And  therefore  this  case  is  in  direct  con- 
flict in  Sibree  v.  Tripp,  15  M.  &  W.  23. 

Two  cases  require  to  be  carefully  considered.  The  first  is  Heathcote 
V.  Crookshanks,  2  T.  R.  24.  The  plea  there  pleaded,  would,  I  tliink, 
now  beheld  perfectly  good,  see  Norman  v.  Thompson,  4  Ex.  755  ;  but 
Buller,  J.,  seems  to  have  thought  otherwise.  He  says,  "  thirdly,  it  was 
said  that  all  the  creditors  were  bound  by  this  agreement  to  forbear,  but 
that  is  not  stated  by  the  plea.  It  is  only  alleged  that  they  agreed  to 
take  a  certain  proportion,  but  that  is  a  nudum  pactum,  unless  they  had 
afterwards  accepted  it.  In  the  case  in  which  Cumber  v.  Wane  was 
denied  to  be  law,  Hardcastle  v.  Howard,  26  Geo.  3,  B.  R.,  the  party 
actually  accepted.  But  as  the  plaintiff  in  the  present  case  refused  to 
take  less  than  the  whole  demand,  the  plea  is  clearh-  bad." 

That  decision  goes  entirely  on  the  ground  that  accord  without  satis- 
faction is  not  a  plea.  I  do  not  think  it  can  be  fairly  said  that  Buller, 
J.,  meant  by  saying  "  that  is  a  nudum  pactum,  unless  they  had  after- 
wards accepted  it,"  to  express  an  opinion  that  if  the  dividend  had  been 
accepted  it  would  have  been  a  good  satisfaction.  But  he  certainly 
expresses  no  opinion  the  other  way. 

In  Fitch  V.  Sutton,  5  East,  230,  not  only  did  the  plaintiff  not  accept 
the  payment  of  the  dividend  in  satisfaction,  but  refused  to  accept  it  at 
all,  unless  the  defendant  promised  to  pa}'  him  the  balance  when  of 
ability,  and  the  defendant  assented  and  made  the  promise  required,  so 
that  but  for  the  fact  that  other  creditors  were  parties  to  the  composition 
there  could  have  been  no  defence.  There  was  no  point  of  pleading  in 
that  case,  the  whole   being   open   under   the  general   issue.     And   in 


SECT.    II.]  FOAKES   V.    BEER.  209 

Steiiiman  v.  Magnus,  11  East,  390,  it  was  prettj'  well  admitted 
bj  Lord  Ellenboiough  that  the  decision  in  Fitch  v.  Sutton  would 
have  been  the  other  way,  if  the}'  had  understood  the  evidence  as  the 
reporter  did.  But  though  this  misapprehension  of  the  judges  as  to  the 
facts,  and  the  absence  of  an}'  acceptance  of  the  dividend,  greatly 
weaken  the  weight  of  Fitch  v.  Sutton,  still  it  remains  that  Lord 
EUenborough,  a  ver}'  great  judge  indeed,  did,  however  hasty  or  un- 
necessary it  maj' have  been  to  express  such  an  opinion,  say,  "It  is 
impossible  to  contend  that  acceptance  of  £17  10s.  is  an  extinguishment 
of  a  debt  of  £50.  There  must  be  some  consideration  for  the  relinquish- 
ment of  the  residue  ;  something  collateral,  to  show  a  possibilit}'  of 
benefit  to  the  part}'  relinquishing  his  further  claim,  otherwise  the  agree- 
ment is  nudum  pactum.  But  the  mere  promise  to  pay  the  rest  when  of 
ability  put  the  plaintiflT  in  no  better  condition  than  he  was  before.  It 
was  expressly  determined  in  Cumber  v.  Wane  that  acceptance  of 
a  security  for  a  lesser  sum  cannot  be  pleaded  in  satisfaction  of  a 
similar  security  for  a  greater.  And  though  that  case  was  said  by  me 
in  argument  in  Heathcote  v.  Crookshanks,  2  T.  R.  24,  to  have  been 
denied  to  be  law,  and  in  confirmation  of  that  Buller,  J.,  afterwards 
referred  Lu  u  case  (stated  to  be  that  of  Hardcastle  v.  Howard,  H.  26 
Geo.  3),  yet  I  cannot  find  any  case  of  that  sort,  and  none  has  been  now 
referred  to  ;  on  the  contrary  the  decision  in  Cumber  v.  Wane  is  directly 
supported  by  the  authority  of  Piunel's  case,  5  Rep.  117  a,  which  never 
appears  to  have  been  questioned." 

I  must  observe  that,  whether  Cumber  v.  Wane  was  or  was  not 
denied  to  be  law  in  Hardcastle  v.  Howard,  it  certainly  was  denied  to 
be  law  in  Sibree  v.  Tripp,  15  M.  &  W.  23,  and  that,  though  it  is  quite 
true  that  Pinnel's  case,  as  far  as  regards  the  points  actually  raised  in  the 
case,  has  not  only  never  been  questioned,  but  is  often  assented  to,  I  am 
not  aware  that  in  any  case  before  Fitch  v.  Sutton,  5  East,  230,  unless  it 
be  Cumber  v.  Wane,  has  that  part  of  it  which  I  venture  to  call  the 
dictum  ever  been  acted  upon  ;  and  as  I  have  pointed  out,  had  it  not 
been  for  the  composition  with  other  creditors,  there  could  have  been  no 
defence  in  Fitch  v.  Sutton,  whether  the  dictum  in  Pinnel's  case  was 
right  or  wrong. 

Still  this  is  an  authox'ity,  and  I  have  no  doubt  that  it  was  on  the 
ground  of  this  authority  and  the  adhesion  of  Bay  ley,  J.,  to  it  in  Thomas 
V.  Heathorn,  2  B.  &  C.  447,  that  Barons  Parke  and  Alderson  expressed 
themselves  as  they  did  in  the  passages  I  have  cited  from  Sibree  v. 
Tripp,  15  M.  &  W.  23.  And  I  think  that  their  expressions  justify 
Mr.  John  William  Smith  in  laying  it  down  as  he  does  in  his  note  to 
Cumber  v.  Wane,  in  the  second  edition  of  his  "  Leading  Cases,"  that 
'■''  a  liquidated  and  nndispnt.pd  rPO'ipy  (fein.ind,  of  whir-li  thp  dny  of 
navment  is  passed  (not  founded  upon  a  bill  of  exchange  or  promissory 
DOte),  cannot  even  with  the  consent  of  the  creditor  be  discliarged  b^' 
mere  payment  by  the  debtor  of  a  smaller  amount  in  money  in  the  same 
manner  as  he  was  bound  to  pay  the  whole."    I  am  inclined  to  think 

VOL.    1. 14 


210  BIDDER   V.    :feRIDGES.  [CHAP.    T. 

that  tnis  was  settled  in  a  court  of  the  first  instance.   I  think,  however, 
that  it  was  originall}'  a  mistake. 

What  principally  weighs  with  me  in  thinking  that  Lord  Coke  made  a 
mistake  of  fact  is  my  conviction  that  all  men  of  business,  whether  mer- 
chants or  tradesmen,  do  every  da}'  recognize  and  act  on  the  ground 
that  prompt  payment  of  a  part  of  their  demand  may  be  more  beneficial 
to  them  than  it  would  be  to  insist  on  their  rights  and  enforce  payment 
of  the  whole.  Even  where  the  debtor  is  perfectly  solvent,  and  sure  to 
pay  at  last,  this  often  is  so.  AVhere  the  credit  of  the  debtor  is  doubt- 
ful it  must  be  more  so.  I  had  persuaded  myself  that  there  was  no  such 
long-continued  action  on  this  dictum  as  to  render  it  improper  in  this 
House  to  reconsider  the  question.  I  had  written  ray  reasons  for  so 
thinking ;  but  as  they  were  not  satisfactorv  to  the  other  noble  and 
learned  Lords  who  heard  the  case,  I  do  not  now  repeat  them  nor  persist 
in  them. 

I  assent  to  the  judgment  proposed,  though  it  is  not  that  which  I  had 
originally  thought  proper. 

Order  appealed  from  affirmed,  and  appeal  dismissed  with  costs.^ 


BIDDER  V.   BRIDGES. 

In  the  Chancery  Division,  November  18,  19,   1887. 

[Reported  in  37  Chancery  Division,  406.] 

The  action  in  this  case  was  brought  for  the  purpose  of  establishing 
certain  rights  of  common. 

The  action  was  tried  before  Mr.  Justice  Kat,  who  gave  judgment  on 
the  27th  of  October,  1885,  in  favor  of  the  defendants  with  costs.     The 

1  The  doctrine  of  Foakes  v.  Beer  is  criticised  by  Professor  Ames  in  12  Harv.  L. 
Rev.  522  seq.,  both  on  the  strength  of  early  authorities  not  cited  by  the  court  and  on 
principle.  It  has  been  followed  in  this  country,  however,  so  widely  that  except  where 
changed  by  statute  the  doctrine  for  which  the  case  stands  may  be  regarded  as  estab- 
lished.    The  authorities  are  fully  collected  in  20  L.  R.  A.  785  n. 

"The  law  has  been  changed  by  statute  in  India,  Indian  Contract  Act,  §  63,  and  in 
at  least  ten  of  our  States:  Ala.  Code,  §  2774  ;  Cn.l.  Civ.  Code.  ^  1524 :  Dak.  Comp. 
Laws,  §  3486;  Ga.  Code,  §  3735;  Maine  Rev.  St.,  c.  82,  §  4^  ;  lno.  Car.  Code, 
§  574 ;  N.  Dak.  Rev.  Code,  §  3827  ;  Hill,  Ann.  Laws  of  Oregon,  §  755  ;  Tenn.  Code 
(1884),  §  4.539  ;  Va.  Code  (1897),  §  2858.  In  one  State,  Mississippi,  the  rule  was  abol- 
ished by  the  Court  without  the  aid  of  a  statute.  Clayton  v.  Clark,  74  Miss.  499.  See 
also  to  the  same  effect,  Smith  v.  Wyatt,  2  Cincin.  Sup.  Ct.  12.  By  decision,  too,  in 
some  States  a  parol  debt  may  be  satisfied  if  the  creditor  gives  a  receipt  in  full  for  a  par- 
tial payment.  Green  v.  Langdon,  28  Mich,221  ;  Lamprey  v.  Lamprey,  29  Minn.  151 
(semble) ;  Grav  v.  Barton,  55  N.  Y.  68  ;  Ferry  v.  Stepliens,  66  N.  Y.  321  ;  Carpenter 
V.  Soule,  88  N.  Y.  251  ;  McKenzie  v.  Harrison,  120  N.  Y.  260.  In  others,  partial  pay- 
ment is  a  satisfaction  if  the  debtor  is  insolvent.  Wescott  v.  Waller,  47  Ala.  492,  498 
(semble) ;  Shelton  v.  Jackson,  20  Tex.  Civ.  App.  443,  or  even  if  he  is  honestly  believed 
to  be  insolvent.  Ric«  v.  London  Co.,  70  Minn.  77."  Professor  Ames,  12  Harv.  L. 
Rev.  525.  .  " 


SECT.    II.]  BIDDER   V.    BRIDGES.  211 

plaintiffs  appealed  from  this  judgment,  and  the  appeal  was  dismissed 
with  costs  on  the  2d  of  August,  1886. 

The  costs  of  the  judgment  and  the  appeal  were  taxed,  and  the  certifi- 
cates of  the  taxing  master  were  given  on  the  27th  of  Ma}-,  1887,  from 
which  it  appeared  that  the  amount  of  the  taxed  costs  of  the  judgment,  paj'- 
able  to  the  defendant,  H.  Davis,  was  £465  17s.  lOc^.,  and  of  the 
taxed  costs  of  the  appeal,  £144  7s.  4(7. 

Mr.  C.  A.  Russ  was  the  solicitor  acting  for  H.  Davis  in  the  action, 
and  he  was  prepared  to  file  the  certificates  when  he  received  a  letter 
from  Messrs.  Rooke  &  Sons,  the  solicitors  for  the  plaintiffs,  asking 
him  to  call  on  them  to  settle  the  costs,  and  not  to  put  his  clients  to  the 
expense  of  filing  the  certificates. 

Mr.  Norris,  the  managing  clerk  of  Mr.  Russ,  accordingly  called  on 
Messrs.  Rooke  &  Sons,  on  the  28th  of  Ma}-,  1887,  when  Mr.  F.  H. 
Rooke  handed  him  a  check  for  £609  5s.  2d.,  being  the  amount  of  the 
taxed  costs  of  the  judgment  and  appeal,  less  £l,  which  was  deducted  on 
account  of  the  certificates  not  being  filed.  Mr.  Norris  then  signed 
receipts  for  the  costs,  which  were  indorsed  upon  the  certificates,  and 
he  then  handed  over  the  certificates  to  Mr.  F.  H.  Rooke.  The  form  of 
the  receipt  on  the  certificate  of  the  costs  of  the  judgment  was  as  follows  : 
"Received  by  check  the  within-mentioned  costs  of  £465  17s.  10c?., 
less  10s.,  remitted.  —  Charles  A.  Russ.  —  H.  G.  N."  And  a  similar 
receipt  was  given  for  the  costs  of  the  appeal.  The  check  was  drawn  by 
flooke  &  Sons  in  favor  of  C.  A.  Russ,  Esq.,  or  order,  and  was  duly 
paid. 

Mr.  Rooke  in  his  affidavit  stated  that  he  objected  to  pay  for  the  filing 
of  the  certificates  on  the  ground  that  they  had  been  taken  out  without 
giving  notice  to  his  firm  of  the  final  appointment  to  dispose  of  certain 
outstanding  queries  and  in  their  absence,  and  also  on  the  ground  that 
filing  the  certificates  was  an  unnecessary  expense  ;  and  that  he  gave  the 
check  in  full  satisfaction  of  all  Davis's  claims  against  the  plaintiffs 
under  the  certificates.  Mr.  Norris,  however,  made  a  counter  aflHdavit 
stating  that  all  the  queries  were  finally  disposed  of  in  the  presence  of  a 
representative  of  Messrs.  Rooke  &  Sons.  Nothing  was  said  at  the 
time  about  interest  on  the  costs  ;  but  on  the  11th  of  July,  1887,  Mr. 
Russ  wrote  a  letter  to  Messrs.  Rooke  &  Sons,  in  which  he  said : 
"  When  you  handed  me  check  for  the  amount  of  taxed  costs  you 
omitted  to  include  interest  on  the  respective  certificates.  This  interest, 
calculated  at  4  per  cent  from  the  respective  dates  of  the  judgment  and 
appeal,  must  be  paid  in  the  usual  way,  and  I  should  be  obliged  by  3-our 
procuring  and  handing  me  a  check  for  £33  16s.  7d.,  the  amount  of  in- 
terest as  aforesaid."  Messrs.  Rooke  &  Sons  having  declined  to  pay 
the  interest  claimed,  Mr.  Russ  wrote  to  them  to  return  the  certificates 
in  order  that  they  might  take  further  proceedings  on  them  ;  and  in- 
closed in  their  place  a  separaj;e  receijjt  for  the  money  which  had  been 
paid.  Messrs.  Rooke  &  Sons  refused  to  give  up  the  certificates,  and 
the  defendant  Davis  then  moved  before  Mr.  Justice  Stirlins  that  the 


212  BIDDER   V.   BRIDGES.  [CHAP.    T. 

plaintiffs  be  ordered  to  file,  or  to  attend  before  the  proper  officer  of  the 
court,  and  produce  to  such  officer  the  certificates  of  the  taxing  master 
of  the  27111  of  May,  1887,  for  the  purpose  of  enabling  the  defendant 
Davis  to  issue  a  writ  of  Ji. /a.,  for  the  interest  on  the  costs  thereby  cer- 
tified and  due  from  the  plaintiffs  to  Davis. 

The  motion  came  on  for  hearing  before  Mr.  Justice  Stirling  on  the 
18th  of  November,  1887. 

If.  Terrell,  for  the  motion. 

W.  Person,  Q.  C,  for  plaintiffs. 

Stirling,  J.  This  is  an  application  of  a  very  unusual  character.  The 
notice  of  motion  is  [Flis  Lordship  read  it  and  continued]  :  It  appears 
that  the  action  of  Bidder  v.  Bridges  was  dismissed  by  Mr.  Justice  Kay, 
with  costs  to  be  paid  to  all  the  defendants,  including  Henry  Davis.  Tiie 
decision  was  affirmed  by  the  Court  of  Appeal,  and  again  the  plaintiffs 
were  ordered  to  pay  the  costs.  The  costs  have  been  taxed  in  pursuance 
of  the  orders.  What  has  taken  place  since  is  in  evidence  in  the  affidavit 
of  the  clerk  of  the  solicitor  who  acted  for  the  defendant  Davis,  and 
who  had  the  conduct  of  the  taxation.  It  is  to  the  effect  that  the  costs 
were  duly  taxed  at  £465  17s.  10c?.,  and  £144  75.  4d.,  making  together 
£610  5^s.  2c7.  [His  Lordship  read  the  letters  which  passed  between  the 
solicitors  in  Ma3%  1887,  and  continued.]  Upon  the  affidavits  there 
is  to  a  certain  extent  a  conflict  of  evidence.  Possibly,  in  one  view, 
that  conflict  may  be  immaterial,  but  if  there  should  be  further  litigation 
it  may  be  material.  It  is  plain,  however,  that  there  was  a  discussion 
about  the  amount  to  be  paid.  The  solicitor  for  the  plaintiffs  insisted 
upon  a  reduction  of  £1  being  made  in  reference  to  the  filing  of  the  cer- 
tificates —  it  having  been  agreed  that  they  should  not  be  filed  ;  and  he 
also  insisted  that  the  clerk  of  the  defendant's  solicitor  should  take  his 
check  for  the  reduced  amount;  and  to  my  mind,  as  the  matter  then 
stood,  the  meaning  of  both  parties  was  that  if  the  check  should  be  hon- 
ored it  was  to  be  taken  in  payment  for  the  bills  of  costs.  That  is  not 
in  dispute,  whatever  may  be  the  legal  effect  of  the  transaction.  The 
check  was  honored.  It  has  the  indorsement  of  the  defendant's  solicitor 
upon  it.  Then  according  to  the  evidence  of  that  solicitor's  clerk  he 
discovered  a  week  or  two  afterwards  that  the  interest  had  been  omit- 
ted to  be  charged.  Tliat  is  an  incorrect  statement,  because  when  he 
went  to  the  plaintiffs'  solicitors'  office  he  knew  that  the  interesi  was 
not  included  in  the  amount  to  be  paid.  What  he  did  discover  was  a 
decision  of  the  Court  of  Appeal  showing  that  the  defendant  might  claim 
interest ;  and  hence  this  motion. 

In  the  first  place  it  was  contended  that  I  have  no  jurisdiction  to  make 
the  order  asked  for.  I  do  not  think  it  necessary  to  go  into  that  ques- 
tion, but  I  am  not  prepared  to  say  that  in  a  proper  case  I  have  not  juris- 
diction. If  I  found  that  one  solicitor  had  by  fraud  or  trickeiy  got 
from  another  a  document  wliich  ought  to  be  filed,  and  if  by  its  not 
being  filed  he  might  be  deprived  of  his  just  rights,  I  would  trv  to  see 
whether  it  could  not  be  placed  upon  the  files  of  the  court ;  but  that  is 


SECT.    II.]  BIDDER   V.    BRIDGES.  213 

not  this  case.  This  was  a  perfectly  plain,  honest,  and  honorable  trans- 
action upon  botli  sides.  In  regard  to  it  the  plaintiffs  have  obtained  an 
advantage  honorably  got,  and  wh}-  should  I  take  it  awa}'  from  them  ? 
It  is  plain  that  the  certificates  were  not  to  be  filed,  and  as  plain  that  it 
was  competent  to  the  parties  to  enter  into  such  an  arrangement ;  if  any 
mistake  was  made,  it  was  a  mistake  of  law,  and  therefore  I  do  not 
see  why  the  advantage  gained  should  be  taken  from  the  plaintiff's.  The 
agreement  being  clear  that  the  certificates  should  not  be  filed,  1  do  not 
think  that  I  ought  to  interfere.  If  there  be  any  other  remedy  open  to 
the  defendant  he  can  pursue  it.  Possibly  that  is  enough  to  dispose  of 
the  motion.  If,  however,  there  be  jurisdiction,  and  I  am  to  exercise  it, 
I  must  be  clear  that  the  law  is  in  favor  of  the  applicant.  The  object 
in  view  is  to  have  the  certificates  filed  so  that  the  applicant  may  im- 
mediately afterwards  proceed  to  obtain  the  interest.  The  dispute 
between  the  parties  in  regard  to  the  check  being  given,  is  shown  in  the 
evidence,  which  is  oath  against  oath  and  nothing  more,  and  all  that  I 
could  do,  if  I  made  an  order,  would  be  to  put  the  matter  in  such  a  posi- 
tion as  that  the  defendant  should  obtain  a  decision  upon  the  conflict  of 
evidence,  but  why  should  I  put  the  plaintiffs,  who  have  got  an  advan- 
tage, to  a  disadvantage,  to  which  they  ought  not  to  be  exposed? 
After  the  arguments  I  may  be  justified  in  seeing  whether  the  authorities 
are  in  favor  of  the  applicant.  What  was  done  by  the  applicant?  He 
accepted,  as  it  appears  to  me,  in  full  satisfaction  of  the  plaintifl!"s'  lia- 
bilit}"  for  costs,  the  check  of  their  solicitors  payable  to  order,  and  that 
check  was  dul}'  honored.  What  in  law  is  the  effect  of  that?  The 
state  of  the  law  is  very  peculiar  in  regard  to  the  acceptance  of  a  smaller 
sum  in  satisfaction  of  a  larger  debt.  The  law  has  been  recentl}'  dis- 
cussed in  the  case  of  Foakes  v.  Beer,  9  App.  Cas.  605,  the  head-note 
of  which  states  that  ''an_  agreement  between  judgment  debtor^an^ti- 
creditor.  that  in  consideration  of  the  debtor  pa^'ing  down  part  of  the 
judgment  debt  and  costs,  and  on  condition  of  iiis  paying  to  the  crecjitoi' 
or  h ig  nnmjpee  tlie  residue  bv  instalments,  the  creditor  will  not  take, 
any  proceedings  on  the  judgment,  is  nudwni  pactum^  being  wittiout 
consideration ,"^id  does  riot  prevent  the  creditor  after  payment  of  tlie^ 
whole  and  costs  from  proceeding  to  enforce_paympnt  of  the  interest 
upon  the  judgment.^  'I'hat  decision  was  founded  upon  the  doctrine 
laid  do\vu  bO  lung  ago  as  Pinnel's  case,  5  Rep.  117  a;  Co.  Litt.  212  b, 
and  it  will  be  sufficient  for  my  purpose  here  if  I  refer  to  what  Lord 
Blackburn  said  in  his  speech  as  to  that  case  :  "  That  was  an  action  on 
a  bond  for  £16  conditioned  for  the  payment  of  £8  10s.  on  the  11th  of 
November,  1600.  Plea  that  defendant,  at  plaintiff's  request,  before  the 
said  day,  to  wit,  on  the  1st  of  October,  paid  to  the  plaintiff  £5  2.'*.  2rf., 
which  the  plaintiff  accepted  in  full  satisfaction  of  the  £8  10s.  The 
plaintifl'  had  judgment  for  the  insufficient  pleading,"  and  his  Lordship 
went  on  to  state  that  Lord  Coke  reports  that  the  court  resolved  "  that 
payment  of  a  lesser  sum  on  the  day  in  satisfaction  of  a  greater  cannot 
be  any  satisfaction  for  the  whole  .  .   .  but  the  gift  of  a  horse,  hawk. 


214  BIDDER   V.   BRroGES.  [CHAP.   I. 

or  robe,  &c.,  in  satisfaction  is  good,  for  it  shall  be  intended  that" 
either  "  might  be  more  beneficial  to  the  plaintiff  than  the  money  ; "  and 
after  referring  further  to  that  case  Lord  Blackburn  said:  "There  are 
two  things  here  resolved.  First,  that  where  a  matter  paid  and  accepted 
in  satisfaction  of  a  debt  certain  might  by  any  possibility  be  more  bene- 
ficial to  the  creditor  than  his  debt,  the  court  will  not  inquire  into  the 
adequacy  of  the  consideration."  And  secondly,  "that  payment  of  a 
lesser  sum  on  the  day  cannot  be  any  satisfaction  of  the  whole."  There 
were,  therefore,  two  resolutions  in  Pinnel's  case,  and  the  decision  of 
the  House  of  Lords  affirmed  the  second  ;  but,  as  I  understand  that 
decision,  it  did  not  in  any  way  disaffirm  the  other.  Therefore  the  first 
resolution  referred  to  by  Lord  Blackburn  is  just  as  much  binding  on 
me  as  the  second.  Then  comes  the  question  here — is  a  negotiable 
instrument  such  a  matter  as  ma}'  be  "  paid  and  accepted  in  satisfaction 
of  a  debt  certain  ? "  The  applicant  accepted  not  a  negotiable  instru- 
ment of  his  debtors,  but  that  of  their  solicitors.  He  took  the  check  of 
different  persons.  Was  that  an  accord  and  satisfaction  according  to 
the  authorities?  No  doubt  the  case  of  Cumber  v.  Wane,  1  Str.  426  ; 
1  Sm.  L.  C.  8th  ed.  p.  357,  was  one  in  reference  to  a  promissory  note. 
In  Foakes  v.  Beer,  9  App.  Cas.  605,  the  record  of  Cumber  ik  Wane  is 
fully  stated  at  page  619.  The  decision  was  that  giving  a  promissorj' 
note  for  £5  cannot  be  pleaded  as  a  satisfaction  for  £15,  but  tliis  has 
been  denied  by  a  series  of  authorities  to  be  law.  Thus  in  Sibree  v. 
Tripp,  15  M.  &  W.  23,  it  was  held  that  a  promissory  note  taken  for  a 
less  sum  than  the  demand  was  a  good  satisfaction  —  that  a  negotiable 
instrument  for  a  smaller  sum  may  be  given  in  satisfaction  of  a  larger 
debt.  Then  there  is  the  case  of  Curlewis  v.  Clark.  3  Ex.  375,  and  also 
that  of  Goddard  v.  O'Brien,  9  Q.  B.  D.  37,  which  goes  even  further 
than  I  am  required  to  go  in  this  case.  It  was  contended  that  these 
three  authorities  went  upon  the  view  that  Cumber  v.  Wane  was  bad 
law,  and  that  this  was  inconsistent  with  the  decision  in  Foakes  v.  Beer. 
I  do  not,  however,  understand  the  House  of  Lords  to  approve  of  the  ap- 
plication made  in  Cumber  v.  Wane  of  the  doctrine  laid  down  in  Pinnel's 
case,  5  Rep.  117a;  Co.  Litt.  212  b.  In  that  case  there  was  a  qualification 
added  that  If  a  thing  of  a  diflferent  kind  be  given  that  is  a  good  satis- 
faction. That  qualification  was  disregarded  in  Cumber  v.  Wane  ;  and 
in  Foakes  v.  Beer  this  circumstance  is  commented  upon  b}'  both  Earl 
'Selborne  and  Lord  Blackburn.  If  furtlier  authority  is  required  I  may 
refer  to  the  notes  of  the  late  Mr.  Justice  Willes  and  Mr.  Justice  Keat- 
ing to  the  case  of  Cumber  v.  Wane  in  Smith's  Leading  Cases,  where 
they  state  the  law  to  be  that  a  demand  may  be  discharged  b}-  payment 
of  a  thing  different  from  that  contracted  to  be  paid  though  of  less 
pecuniary  value,  and  they  give  as  an  instance  a  negotiable  instrument 
binding  the  debtor  or  a  third  person  to  pa}'  a  smaller  sum.  Under 
these  circumstances,  having  regard  to  the  current  of  authorities,  which 
appear  to  me  to  be  unaffected  by  the  decision  of  the  House  ol  Lords,  I 
liold  that  the  check  nf  a  third  pj.rty  g"'Pii_as  this  check  was.  waa-arsatl» 


SECT,   n.]  TANNER   V.   MERRILL.  215 

fjkction_of  the  debta_and  was  a  good  payment.  Therefore,  both  as  to 
the  form  and  upon  the  merits,  the  application  fails  and  must  be  refused 
with  costs. 

From  this  decision  the  defendant  Davis  appealed.^ 


TANNER   V.    MERRILL. 
Michigan  Supreme  Court,  November  22-December  30,   1895. 

[Reported  in  108  Michigan,  58.] 

Hooker,  J.  The  defendants  appeal  from  a  judgment  recovered 
against  them  at  circuit.  They  are  lumbermen,  and  the  plaintiff 
worked  for  them  at  Georgian  Bay,  his  transportation  from  Saginaw 
to  that  place  having  been  paid  by  them.  When  he  quit  work,  a 
question  arose  as  to  who  should  pay  this,  under  the  contract  of 
employment,  and  defendants'  superintendent  declined  to  pay  any 
transportation.  The  plaintiff  needed  the  money  due  him  to  get 
home,  and  showed  a  telegram  announcing  the  illness  or  death  of  his 
mother,  and  said  that  he  must  go  home,  to  which  the  superintendent 
replied  that  "he  did  not  pay  any  man's  fare;"  whereupon  a  receipt 
in  full  was  signed,  and  the  money  due,  after  deducting  transporta- 
tion, was  paid.  The  plaintiff  testified  that  they  had  no  dispute,  only 
he  claimed  the  fare  and  the  superintendent  refused  to  allow  it. 

The  most  important  question  arises  over  a  request  to  charge  upon 
the  part  of  the  defendants,  which  reads  as  follows: 

"  The  testimony  of  the  plaintiff  is  that,  at  the  time  the  receipt  put 
in  evidence  in  this  case  was  signed  by  him,  he  claimed  that  his  rail- 
road fare  should  not  be  deducted  from  his  wages;  that  this  was  denied 
by  the  agents  and  superintendent  of  defendants,  and  it  was  taken  out 
of  his  wages;  that  he  then  signed  the  receipt  with  full  knowledge  of 
its  contents,  and  of  the  fact  that  his  railroad  fare  had  been  taken  out 
of  his  wages.  This  being  so,  the  receipt  in  this  case,  upon  the  plain- 
tiff's own  testimony,  cannot  be  contradicted.  While  a  receipt  may^ 
be  contradicted  in  certain  cases,  it  must  be  in  a  case  of  mistake, 
Ignorance  of  fact,  fraud,  or  when  some  unconscionable  advantage 


1  The  opinions  of  Lord  Justices  Cotton,  Lindley,  and  Lopes  in  the  Court  of  Appeal, 
affirming  the  decision,  are  omitted. 

A  note  or  promise  of  one  joint  debtor  to  pay  the  whole  or  part  of  thp.  dphf.  innv 
d|sciTarge  thedebt.  Eyth  v.  Ault,  7  Ex.  669  ;  Morris  v.  Van  Vorst,  1  Zab.  100.  119  ; 
Thompson  v.  Percival,  5  B.  &  Ad.  925  ;  Ludington  v.  Bell,  77  N.  Y.  138  ;  Allison  y. 
Abendroth,  108  N.  Y.  470 ;  Jaffray  v.  Davis,  124  N.  Y.  164,  173.  See,  however,  coyitrd. 
Early  v.  Burt,  68  la.  716.  In  Bendix  v.  Avers,  21  N.  Y.  App.  Div.  570,  it  wa.*!  held 
that  payment  of  part  of  a  firm  debt  by  retiring  partners  was  sufficient  consideration 
to  support  a  promise  to  discharge  those  partners  from  further  liabilitv.  Hut  this  is 
opposed  to  Deering  v.  Moore,  86  Me.  181  ;  Weber  v.  Couch,  134  Mass.  26;  Line  v. 
Nelson,  38  N.  J.  L.  358  ;  Harrison  v.  Wilcox,  2  Johns.  448  ;  Martin  i;.  Erantz,  127  Pa. 
389. 


216  TANNER   V.   MERRILL.  [CHAP.   I. 

has  been  tak£n__of_one  by  the  other  party.  Therefore,  the  receipt, 
in  this  case,  shows  aTTiiTr^settlement  oT  all  claims  plaintiff  had 
against  the  defendants." 

The  only  theory  upon  which  it  can  be  contended  that  this  request 
should  have  been  given  is  that  the  plaintiff  accepted  less  than  he 
claimed,  but  no  more  than  defendants  admitted,  to  be  due,  and 
gave  a  receipt  in  full  when  the  defendants'  superintendent  refused 
to  pay  more.  "We  do  not  discover  any  testimony  tending  to  show 
an  agreement  to  accept  as  payment,  either  in  full  or  by  way  of  com- 
promise, except  the  receipt,  and  the  question  resolves  itself  into  this: 
Whether  a  receipt  in  full  is  conclusive  of  the  question  of  defendant's 
liability,  when  it  is  given  upon  payment  of  a  portion  of  a  claim  ad- 
mittedly due,  accompanied  by  a  refusal  to  pay  more,  in  the  absence 
of  mistake,  fraud,  duress,  or  undue  influence. 

It  is  urged  upon  behalf  of  the  plaintiff  that  receipts  are  always 


open  to  explan^ioh,  audr  that  there  is^nu'  (ionsideration  to  support 
the  acceptance  of  a  portion  of  a  valid  claim  as  full  payment: — Tite- 
cases  which  counsel  cite  do  not  supporTthe  broad  contention  of  plain- 
tiff's  counsel,  which  would  seriously  derange  business  affairs  if  it 
should  be  sustained.  The  doctrine  that  the  receipt  of  part  payment 
must  rest  upon  a  valid  consideration  to  be  effective  in  discharge  of 
the  entire  debt  is  carefully  limited  to  cases  where  the  debt  is  liqui- 
dated, by  agreement  of  the  parties  or  otherwise,  which  was  not  the 
case  here.  It  was  in  dispute.  In  the  case  of  St.  Louis,  etc.,  R.  Co. 
V.  Davis,  35  Kan.  464,  the  opinion  says  that  "it  is  a  well-settled 
£rinciple^of_Jaw  thai  the_  pay ment  9^  a  part  of  an  ascertained,  over- 
-<liiej_and  undisputed  debt,  although  accep^ted  as  full  satisfaction,  and~ 
_a  receipt  in  full  is  fflveu,  does-  not  estop  the  creditor  fro  nireco\' tiring 
the  balance.  In  such  a  case  the  agreement  to  accept  a  smaller  sum  is 
regarded  to  be^oJEouTconsideration.''  The  case  of  Day  v.  Gardner, 
42  N.  J.  Eq.  199,  was  one  whereThe  agreement  was  io  forgive  a  debt, 
implying  its  existence.  In  Hasted  v.  Dodge  (Iowa),  35  N.  W.  462, 
the  opinion  of  Mr.  Justice  Rothrock  shows  the  debt  not  to  have  been 
in  dispute.  Moreover,  the  doctrine  was  not  applicable  to  the  case 
for  reasons  shown.  See  also  American  Bridge  Co.  v.  Murphy,  13 
Kan.  35.  In  Bailey  v.  Day,  26  Me.  88,  the  claim  was  liquidated  by 
judgment.  In  Hayes  v.  Insurance  Co.,  125  111.  639,  the  court  apply 
the  doctrine  relied  upon,  but  expressly  state  that  "this  rule  has  no 
application  where  property  other  than  money  is  taken  in  satisfaction, 
or  where  there  is  an  honest  compromise  of  unliquidated  or  disputed 
demands."  See  also  Bish.  Cont.  §  50 ;  2  Pars.  Cont.  618.  In  Marion  v. 
Heimbach,  62  Minn.  215,  the  Court  say:  "But  where  the  claim  is  un- 
liquidated, it  would  seem  to  be  true  that  if  the  creditor  is  tendered  a 
sum  less  than  his  claim,  upon  the  condition  that,  if  it  is  accepted,  it 
must  be  in  full  satisfaction  of  his  whole  claim,  his  acceptance  is  an 
accord  and  satisfaction."  See  also  Fuller  v.  Kemp,  138  N.  Y.  231, 
where  the  same  doctrine  is  held ;  Fire  Ins.  Ass'n  v.  Wickham,  141  U.  S. 


SECT,   n.]  TANNER   V.   MERRILL.  217 

nTT  Thq  inip^''^^"^  fii-p-t-ia  asGCvtaia  is  whether  the  plaintiff's  claim 
was  a  liquidated  claim  or  not.  If  it  was,  there  was  no  consideration 
for  the-jdischarge..  If  not,  the  authorities  are  in  substantial  accord 
"^at  part  payment  of  the  claim  may  discharge  the  debt,  if  it  is  so 
received.  Upon  the  undisputed  facts,  the  claim  of  the  plaintiff,  as 
made,  was  not  liquidated.  It  was  not  even  admitted,  but,  on  the 
contrary,  was  denied,  because  the  defendants  claimed  that  it  had 
been  partially  paid  by  a  valid  offset.  While  the  controversy  was 
over  the  offset,  it  is  plain  that  the  amount  due  the  plaintiff  was  in 
dispute.  It  so,  it  is  difficult  to  understand  how  it  could  be  treated 
as  a  liquidated  claim,  unless  it  is  to  be  said  that  a  claim  may  be 
liquidated  piecemeal,  and  that,  so  far  as  the  items  are  agreed  upon, 
it  is  liquidated, 'and  to  that  extent  is  not  subject  to  adjustment  on  a 
basis  of  part  payment.  Cases  are  not  numerous  in  which  just  this 
phase  of  the  question  appears.  This  would  seem  remarkable,  unless 
we  are  to  assume  that,  in  calling  a  claim  unliquidated,  the  courts  have 
alluded  to  the  whole  claim,  and  have  considered  that,  where  the 
amount  is  not  agreed  upon,  the  claim  as  a  whole  is  unliquidated, 
and  therefore  subject  to  adjustment.  If  this  is  not  true,  no  man 
can  pay  an  amount  that  he  admits  to  be  due  without  being  subject 
to  action  whenever  and  so  often  as  his  creditor  may  choose  to  claim 
that  he  was  not  fully  paid,  no  matter  how  solemn  may  have  been  his 
acknowledgment  of  satisfaction,  so  long  as  it  is  not  a  release  under 
seal. 

The  general  rule  is  a  technical  one,  and  there  are  many  exceptions. 
It  has  been  said  that  it  "often  fosters  bad  faith,"  and  that  "the 
history  of  judicial  decisions  upon  the  subject  has  shown  a  con- 
stant effort  to  escape  from  its  absurdity  and  injustice."  Harper  v. 
Graham,  20  Ohio,  105;  Kellogg  v.  Richards,  14  Wend.  116;  Brooks 
V.  White,  2  Mete.  (Mass.)  283  (37  Am.  Dec.  95).  Again,  it  is  said 
to  be  "rigid  and  unreasonable,"  and  "a  rule  that  defeats  the  ex- 
pressed intentions  of  the  parties,  and,  therefore,  should  not  be 
extended  to  embrace  cases  not  within  the  letter  of  it."  Wescott 
■y.  Waller,  47  Ala.  492;  Johnston  v.  Brannan,  5  Johns.  268; 
Simmons  v.  Almy,  103  Mass.  35.  See  Milliken  v.  Brown,  1  Ruwle, 
391,  where  the  rule  is  vigorously  denounced.  It  has  no  application 
in  cases  of  claims  against  the  government.  If  one  accepts  the  amount 
allowed,  it  is  a  discharge  of  the  whole  claim.  U.  S.  v.  Adams, 
7  Wall.  463;  U.  S.  v.  Child,  12  Wall.  232.  See  also  Wapello  Co.  v. 
Sinnaman,  1  G.  Greene,  413;  Brick  v.  County  of  Plymouth,  63  Iowa, 
462;  Perry?;.  Cheboygan,  55  Mich.  250;  Calkins  v.  State,  13  Wis. 
389.  Again,  it  has  been  repeatedly  held  that  part  payment  is  a  bar 
to  a  claim  for  interest.  Another  exception  is  found  in  composition 
with  creditors. 

It  is  believed  that  we  may  safely  treat  this  claim  as  one  claim,  not 
as  two,  and  as  unliquidated,  inasmuch  as  it  was  not  admitted.  In 
McGlynn  v.  Billings,   16  Vt.  329,  the  defendant,  after  an  examina- 


218  TANNER   V.   MERRILL.  [CHAP.   I. 

tion  of  accounts,  claimed  that  he  owed  the  plaintiff  $82,  and  drew  a 
check  for  that  sum,  and  tendered  it  as  payment  in  full.     It  was  re- 
fused, and  it  was  delivered  to  a  third  person,  with  directions  to  deliver 
it  whenever  the  plaintiff  would  receive  it  as  payment  in  full.     This 
was  done,  and  it  was  held  to  discharge  the  debt.     In  Hills  v.  Sommer, 
53  Hun,  392,  the  plaintiffs  shipped  lemons  to  dealers  in  St.  Joseph, 
Mo.,  and  were  notified  that  some  were  defective,  with  a  claim  of  a 
specific  rebate,  which  plaintiffs  refused  to  allow.     A  draft  was  sub- 
sequently sent  for  the  amount  which  the  defendants  had  previously 
expressed  their  willingness  to  allow,    with  a  letter  stating   that   it 
was  in  payment  of  the  invoice.     The  draft  was  cashed,  and  action 
brought  for  the  remainder  of  the  claim.     Verdict  was  directed  for 
the  defendants.     Pierce  v.  Pierce,  25  Barb.  243,  seems  to  be  a  simi- 
lar case.     In  Potter  v.  Douglass,  44  Conn.  541,  plaintiff  refused  $45, 
which  was  tendered  in  full  payment  of  a  claim.      He  took  it,  however, 
on  account,  as  he  said,  and  wrote  a  receipt  to  that  effect,  which  de- 
fendant refused,  for  the  reason  that  it  stated  that  the  money  was 
received  on  account.     The  plaintiff,  however,  kept  the  money.     It 
does  not  appear  that  this  amount  of  $45  was  disputed.     Apparently, 
it  was  not.     Yet  the  court  called  the  claim  an  unliquidated  demand, 
and  held  it  to  have  been  discharged.     In  Perkins  v.  Headley,  49  Mo. 
App.   562,  it  is  said:   "But  if  there  is  a  controversy  between  him 
[the  creditor]   and  his  debtor  as  to  the  amount  which  is  due,  and 
if  the  debtor  tenders  the   amount  w^hich  he  claims  to  be  due,   but 
tenders  it  on  the  condition  that  the  creditor  accept  it  in  discharge 
of  his  whole  demand,  and  the  creditor  does  accept  it,  that  will  be  an 
accord  and  satisfaction  as  a  conclusion  of  law." 

While  no  Michigan  case  decisive  of  this  question  is  cited,  and  we 
recall  none,  it  was  held  in  Houghton  v.  Ross,  54  Mich.  335,  that:  — 

"A  receipt  wliiG]l_siates  its  purpose  to  Jhe_f or  a^.complete  settle- 
men't^  and^  which  covers  thejwhole  period  of  dealing,  is  equivalent  to 
an  account  stated ;  andthough  it  is  open  to  explanation  as  to  errors 
or  omissions,  it  cannot  be  treated  as  if  i^  b^ad_not  been  meant  to 
cover  everything." 

And  in  Pratt  v.  Castle,  91  Mich.  84,  it  was  said  that:  — 

"1.  Settlements  are  favored  by  the  law,  and  will  not  be  set  aside, 
except  for  fraud,  mistake,  or  duress. 

"2.    A  settlement  evidenced  by  the  execution  of  mutual  receipts  of 

one  dollar,  in  full  for  all  debts,  dues,  and  demands  to  this  date,'  " 

except  as  to  certain  specified  items,  is  conclusive,  in  the  absence  of 

fraud  or  mistake,  as  to  all  prior  dealings  between  the  parties  not 

covered  by  the  excepted  items." 

See  also  Dowling  v.  Eggemann,  47  Mich.  171. 

It  therefore  appears  that  such  settlements  should  have  weight,  and 
it  seems  reasonable  to  hold  that  the  rule  contended  for  does  not  apply, 
for  the  reason  that  this  was  an  unliquidated  demand,  although  a  cer- 
tain portion  of  it  was  not  questioned.     Clearly,  the  claim  was  dis- 


SECT.    II.]  BENSON    V.    PHIPPS.  219 

puted,  and,  so  far  as  this  record  shows,  the  defendants'  superintendent 
was  given  to  understand  that  the  money  paid  was  accepted  in  full  sat- 
isfaction, as  plaintiff's  own  evidence  shows  that  he  gave  the  receipt 
without  protest,  and  without  stating  to  the  defendants'  superintend- 
ent what  he  said,  aside,  to  his  fellow  laborers,  that  it  would  make  no 
difference  if  they  did  give  the  receipts.  To  hold  otherwise  would  be 
a  recognition  of  the  "mental  reservation"  more  effective  than  just. 
Upon  the  plaintiff's  own  testimony,  he  accepted  the  money,  with  the 
knowledge  that  the  defendants  claimed  that  the  amount  paid  was  all 
that  was  his  due,  and  gave  a  receipt  in  full.  There  is  nothing  in  the 
case  to  negative  the  inference  naturally  to  be  drawn  from  this  testi- 
mony, that  there  was  an  accord  and  satisfaction  of  an  unliquidated 
demand. 

The  judgment  must  he  reversed.     N^o  new  trial  should  be  ordered} 


H.    L.    BENSON   v.    L.    PHIPPS. 
Texas  Supreme  Court,  March  4,   1895. 

[Reported  in  87  Texas,  578.] 

Gaines,  Chief  Justice.  The  plaintiff  was  a  surety  for  one  Hosack, 
the  principal  maker  upon  a  promissory  note  payable  to  the  defend- 
ant in  error.  Some  days  after  the  note  fell  due,  Hosack  wrote  de- 
fendant in  error  requesting  an  extension,  to  which  request  defendant 
replied  by  letter  as  follows:  "I  will  extend  the  time  of  payment  one 
year,  and  look  with  confidence  for  the  accrued  interest  within  sixty 
days,  hoping  it  will  not  inconvenience  you.  After  that,  if  it  is  your 
pleasure  to  make  the  interest  on  the  extension  payable  semi-annually, 
it  will  help  me." 

The  defendant  in  error  testified  to  having  received  the  letter  from 
Hosack  requesting  an  extension,  and  that  the  foregoing  was  his 
reply,  but  the  contents  of  Hosack's  communication  were  not  other- 
wise shown.  He  also  testified,  that  he  was  paid  nothing  for  the  ex- 
tension, and  that  Hosack  never  paid  the  accrued  interest. 

Suit  having  been  brought  on  the  note  by  the  payee  against  all  the 
makers,  the  plaintiff  in  error  pleaded  his  suretyship;  and  the  facts 
as  stated  above  having  been  proved,  the  trial  court  gave  judgment 
for  the  plaintiff  in  that  court.  That  judgment  upon  appeal  was 
affirmed  by  the  Court  of  Civil  Appeals. 

It  is  the  right  of  the  surety  at  any  time  after  the  maturity  of  the 
debt  to  pay  it  and  to  proceed  against  the  principal  for  indemnity. 

1  Chicago,  &c.  Rv.  Co.  v.  Clark,  178  U.  S.  353,  367  ;  Ostrander  v.  Scott,  161  111. 
339,  ace.  See  also  Fuller  v.  Kemp,  138  N.  Y.  231  ;  Nassoiy  v.  Tomlinson,  148  N.  Y. 
326.     Miller  v.  Coates,  66  N.  Y.  609,  contra. 


220  BENSON   V.    PHIPPS.  [chap.    I. 

This  right  is  impaired  if  the  creditor  enter  into  a  valid  contract 
with  the  principal  for  an  extension  of  the  time  of  payment.  The 
obligation  of  the  sm-ptj^a  strintly  1i7nited  to  the  terms  of  his_con- 


tract,  ancTany  valid  agreement  between  the  creditor  and  the  principal, 
5^2wliLQk-Ms_B9S^tioiris  changed  for  tlu'  woise,  discharges  his^lia^- 
^biUt^  For  this  reason  it  is  universally  held,  that  a  contract  between 
the  two,  which  is  binding  in  law,  by  which  the  principal  secures  an 
extension  of  time,  releases  the  surety,  provided  the  surety  has  not 
become  privy  to  the  transaction  by  consenting  thereto.  If  the 
creditor  is  not  bound  by  his  promise  to  extend,  it  is  clear  there  is 
no  release.  In  order  to  hold  him  bound  by  his  promise,  there  must 
be  a  consideration.  Whether  a  mere  agreement  for  an  extension  by 
the  debtor  is  sufficient  to  support  a  promise  to  extend  by  the  creditor, 
is  a  question  upon  which  the  authorities  are  not  in  accord.  We 
are  of  opinion,  however,  that  the  question  should  be  resolved  in  the 
affirmative,  at  least  in  cases  in  which  it  is  contemplated  by  the  con- 
tract that  the  debt  should  bear  interest  during  the  time  for  which  it 
is  extended.  If  the  new  agreement  was  that  the  debtor  should  pay 
at  the  end  of  the  period  agreed  upon  for  the  extension  precisely  the 
same  sum  which  was  due  at  the  time  the  agreement  was  entered  into, 
the  case  might  be  different.  But  a  promise  to  do  what  one  is  not 
bound  to  do,  or  to  forbear  what  one  is  not  bound  to  forbear,  is  a  good 
consideration  for  a  contract.  In  case  of  a  debt  which  bears  interest 
either  by  convention  or  by  operation  of  law,  when  an  extension  for 
a  definite  period  is  agreed  upon  by  the  parties  thereto,  the  contract 
is,  that  the  creditor  will  forbear  suit  during  the  time  of  the  extension, 
and  the  debtor  foregoes  his  right  to  pay  the  debt  before  the  end  of 
that  time.  The  latter  secures  the  benefit  of  the  forbearance;  the 
former  secures  an  interest-bearing  investment  for  a  definite  period 
of  time.  One  gives  up  his  right  to  sue  for  a  period  in  consideration 
of  a  promise  to  pay  interest  during  the  whole  of  the  time;  the  other 
relinquishes  his  right  to  pay  during  the  same  period,  in  considera- 
tion of  the  promise  of  forbearance.  To  the  question,  why  this  is  not 
a  contract,  we  think  no  satisfactory  answer  can  be  given.  It  seems 
to  us  it  would  be  a  binding  contract,  even  if  the  agreement  was  that 
the  debt  should  be  extended  at  a  reduced  rate  of  interest.  That  an 
agreement  by  the  debtor  and  creditor  for  an  extension  for  a  definite 
time,  the  debt  to  bear  interest  at  the  same  rate  or  at  an  increased  but 
not  usurious  rate,  is  binding  upon  both,  is  held  in  many  cases,  some 
of  which  we  here  cite:  Wood  v.  Newkirk,  15  Ohio  St.  295;  Fowler 
V.  Brooks,  13  N.  H.  240;  Davis  v.  Lane,  10  N.  H.  156;  Stallings  v. 
Johnson,  27  Ga.  564;  Robinson  v.  Miller,  2  Bush  (Ky.),  179;  Rey- 
nolds V.  Barnard,  36  111.  App.  218;  Chute  v.  Pattee,  37  Me.  102; 
Rees  V.  Barrington,  2  Ves.  540;  see  also  Grossman  v.  Wohlleben, 
90  111.  537;  McComb  v.  Kittredge,   14  Ohio,  348.^ 

1  Royal   I'.  Lindsay,  15  Kan.  591  ;  Shepherd  v.  Thompson,  2  Bush,  176  ;  Alley  v. 
Hopkins,  98  Ky.  668;  Simpson  v.  Evans,  44  Minn.  419 ;  Moore  v.  Redding,  69  Miss. 


SECT.    II.]  BENSON   V.   PHIPPS.  221 

In  many  cases  which  seemingly  support  the  contrary  doctrine, 
there  was  a  mere  promise  by  the  creditor  to  forbear,  without  any 
corresponding  promise  on  part  of  the  debtor  not  to  pay  daring  the 
time  of  the  promised  forbearance.  lu  such  cases,  it  is  clear  that 
there  is  no  consideration  for  the  promise.  In  others,  where  there 
was  a  mutual  agreement  for  the  extension,  it  may  be  that  interest 
during  the  period  of  extension  was  not  allowed  by  law,  and  the 
agreement  did  not  provide  for  the  payment  of  interest.  The  case 
of  McLemore  v.  Powell,  12  Wheaton,  554,  may  have  been  of  that 
character. 

In  this  case,  as  we  construe  the  correspondence  between  Hosack 
and  the  defendant  in  error,  there  was  a  request  for  an  extension  of 
the  debt  for  twelve  months  on  part  of  the  former,  and  an  uncondi- 
tional acceptance  on  the  part  of  the  latter.  We  infer,  that  Hosack 
must  have  written  something  about  the  payment  of  accrued  interest 
—  probably  that  he  hoped  to  be  able  to  pay  it  in  sixty  days.  The 
presumption  is,  that  the  letter  was  in  the  possession  of  the  defendant 
in  error  at  the  time  of  the  trial.  He  did  not  produce  it.  In  any 
event,  he  should  have  known  its  contents,  and  if  Hosack  made  his 
request  for  an  extension  conditional  upon  his  payment  of  the  accrued 
interest,  he  should  have  testified  to  the  fact.  We  conclude,  there- 
fore, that  there  was  a  binding  promise  for  an  extension,  and  that  the 
plaintiff  in  error  was  therefore  released.^ 

There  is  error  in  the  judgment,  for  which  it  must  be  reversed;  and 
since  it  may  be  shown  upon  another  trial  that  Hosack's  offer  con- 
tained a  condition  that  he  would  pay  the  interest  in  sixty  days,  the 
cause  is  remanded. 

Reversed  and  remanded.^ 

841  ;  Fawcett  v.  Freshwater.  31  Ohio  St.  637,  ace. ;  Abel  v.  Alexander,  45  Ind.  523 ; 
Hume  V.  Mazelin,  84  Ind.  574  ;  Holmes  v.  Boyd,  90  Ind.  332 ;  Davis  v.  Stout,  126  Ind. 
12;  Wilson  v.  Powers,  130  Mass.  127  ;  Hale  v.  Forbes,  3  Mont.  395;  Grover  v.  Hop- 
pock,  2  Dutch.  191  ;  Kellogg  v.  Olmsted,  25  N.  Y.  189  ;  Parmelee  v.  Thompson,  45 
N.  Y.  58  ;  Olmstead  v.  Latimer,  158  N.  Y.  313,  contra.  See  also  Toplitz  v.  Bauer,  161 
N.  Y.  325. 

^  An  examination  by  the  court  of  several  Texas  decisions  is  omitted. 

2  Compare  :  Hopkins  v.  Logan,  5  M.  &  W.  241  ;  Vereycken  v.  Vandenbrooks,  102 
Mich.  119  ;  Stryker  v.  Vanderbilt,  3  Dutch.  68  ;  McNish  v.  Reynolds,  95  Pa.  483  ;  Gib- 
son V.  Daniel,  17  Tex.  173  ;  Mclntyre  v.  Ajax  Mining  Co.,  20  Utah,  323,336;  Flanders 
V.  Fay,  40  Vt.  316  ;  Stickler  v.  Giles,  9  Wash.  147  ;  Price  v.  Mitchell,  23  Wash.  742. 


222  AUSTIN   REAL  ESTATE,   ETC.,  CO.   V.   BAHN.      [CHAP.   I. 


THE  AUSTIN   REAL   ESTATE  AND  ABSTRACT 
COMPANY  V.   G.   A.   BAHN. 

Texas  Supreme  Court,  March  11,  1895. 

[Reported  in  87  Texas,  582.] 

On  motion  for  rehearing. 

Gaines,  Chief  Justice. — This  is  a  motion  for  a  rehearing  of  an 
application,  based  upon  the  ground  that  our  ruling  in  this  case  is  in 
conflict  with  that  made  in  the  case  of  Benson  v.  Phipps,  recently 
decided  in  this  court. 

When  the  application  now  before  us  was  filed,  it  was  considered 
that  it  probably  involved  the  same  question  which  was  raised  in  Ben- 
son V.  Phipps,  and  upon  which  a  writ  of  error  had  been  granted. 
Action  upon  the  application  was  accordingly  suspended  until  that 
case  was  decided ;  and  then  it  was  discovered,  that  although  the  ques- 
tion of  the  validity  of  a  promise  for  an  extension  of  a  contract  of 
indebtedness  was  involved  in  each  case,  the  two  were  clearly  dis- 
tinguishable. In  this  case,  with  reference  to  this  question,  the  trial 
court  found  the  facts  as  follows:  "That  a  few  days  after  the  note 
sued  on  became  due,  and  just  before  it  was  assigned  to  the  plaintiff, 
N.  E.  Fain  presented  same  to  the  defendant  for  payment,  when  said 
Stacy,  as  president  of  defendant  company,  requested  that  an  exten- 
sion of  one  week  from  that  date  be  given  on  said  note,  and  that  the 
same  be  not  placed  in  the  hands  of  attorney  for  collection  until  one 
week ;  and  agreed,  if  this  was  done,  that  he  would  pay  the  note  within 
that  time,  etc.  Here  the  creditor  agrees  to  extend  for  one  week,  and 
the  debtor  agrees  to  pay  within  the  week.  He  does  not  agree  that  he 
will  not  pay  until  the  end  of  the  week,  or  that  in  case  he  does  pay,  he 
will  pay  interest  for  the  entire  period  of  the  extension.  Hence  there 
was  no  consideration  for  the  promise  of  the  creditor.  In  Benson  v. 
Phipps,  the  principal  maker  of  the  note  and  the  payee  agree  upon  an 
extension  for  twelve  months ;  from  which  the  promise  was  implied  on 
part  of  the  former  not  to  sue,  and  upon  the  latter  not  to  pay  within 
the  stipulated  time.  The  promise  of  the  debtor  to  forego  his  right 
to  pay  at  any  time  after  the  note  was  originally  due,  secured  to  the 
creditor  the  absolute  right  to  receive  the  interest  for  the  entire  time 
of  the  extension,  and  constituted  the  consideration  for  the  creditor's 
promise. 

In  the  case  before  us,  it  was  the  right  of  the  company  to  pay  at 
any  time,  notwithstanding  Fain's  promise,  and  hence  there  was  no 
consideration  to  support  that  promise. 

The  motion  for  a  rehearing  is  overruled. 

Motion  overruled} 

1  McManus  v.  Bark,  L.  R.  5  Ex.  65,  ace. 


SECT,  n.]  LATTOIOEE  V.  HAKSBN.  223 

LATTIMORE  and  Others  v.   HARSEN. 
New  York  Supreme  Court,  August,   1817. 

[^Reported  in  14  Johnson,  330.] 

This  was  a  motion  to  set  aside  the  report  of  referees.  It  appeared 
from  the  affidavits  which  were  read,  that  the  plaintiffs  entered  into 
an  agreement  under  seal,  dated  the  14th  of  November,  1815,  with 
Jacob  Harsen,  and  the  defendant,  Cornelius  Harsen,  by  which  the 
former,  in  consideration  of  the  sum  of  nine  hundred  dollars,  agreed 
to  open  a  cartway  in  Seventieth  Street,  in  the  city  of  New  York,  the 
dimensions  and  manner  of  which  were  stated  in  the  agreement,  and 
bound  themselves  under  the  penalty  of  two  hundred  and  fifty  dollars 
to  a  performance  on  their  part.  Some  time  after  the  plaintiffs  en- 
tered upon  the  performance,  they  became  dissatisfied  with  their 
agreement,  and  determined  to  leave  off  the  work,  when  the  defendant, 
by  parol,  released  them  from  their  covenant,  and  promised  them  that 
if  they  would  go  on  and  complete  the  work,  and  find  materials,  he 
would  pay  them  for  their  labor  by  the  day.  The  plaintiffs  had  re- 
ceived more  than  the  sum  stipulated  to  be  paid  to  them  by  the  origi- 
nal agreement.  The  action  was  brought  for  the  work  and  labor,  and 
materials  found  by  the  plaintiffs,  under  the  subsequent  arrangement, 
and  the  referees  reported  the  sum  of  four  hundred  dollars  and  five 
cents  in  favor  of  the  plaintiffs. 

The  case  was  submitted  to  the  court  without  argument. 

Per  Curiam.  The  only  question  that  can  arise  in  the  case  is, 
whether  there  was  evidence  of  a  contract  between  the  plaintiff  and 
the  present  defendant  to  perform  the  services  for  which  this  suit  is 
brought.  From  the  evidence,  it  appears  that  a  written  contract  had 
been  entered  into  between  the  plaintiff  and  the  defendant,  together 
with  his  father  Jacob  Harsen,  for  the  performance  of  the  same  work; 
and  that,  after  some  part  of  it  was  done,  the  plaintiffs  became  dis- 
satisfied with  their  contract,  and  determined  to  abandon  it.  The  de- 
fendant then  agreed,  if  they  would  go  on  and  complete  the  work,  he 
would  pay  them  by  the  day  for  such  serv'ice,  and  the  materials  found, 
without  reference  to  the  written  contract. 

This  is  the  allegation  on  the  part  of  the  plaintiffs,  and  which  the 
evidence  will  very  fairly  support.  If  the  contract  is  made  out,  there 
can  be  no  reason  why  it  should  not  be  considered  binding  on  the  de- 
fendant. By  the  former  contract,  the  plaintiffs  subjected  themselves 
to  a  certain  penalty  for  the  non-fulfilment,  and  if  they  chose  to  incur 
this  penalty  they  had  a  right  to  do  so,  and  notice  of  such  intention 
was  given  to  the  defendant,  upon  which  he  entered  into  the  new  ar- 
rangement. Here  was  a  sufficient  consideration  for  this  promise;  all 
payments  made  on  the  former  contract  have  been  allowed,  and  perfect 


224  MUNROE   V.   PERKJNS.  [CHAP.   I. 

justice  appears  to  have  been  done  by  the  referees,  and  no  rules  or 
principles  of  law  have  been  infringed.  The  motion  to  set  aside  the 
report,  therefore,  ought  to  oe  denied. 

Motion  denied. 


GEORGE   MUNROE   v.   THOMAS    H.    PERKINS. 

Supreme  Judicial  Court  of  Massachusetts,  March  Term, 

1830. 

[Reported  in  9  Pickering,  298] 

Indebitatus  assumpsit  for  work  done,  materials  found,  money  paid, 
&;c.,  brought  against  the  defendant  jointly  with  William  Payne, who 
died  after  tlie  action  was  commenced. 

At  the  trial  before  the  Chief  Justice  it  appeared  that  in  1821  the 
plaintiff  was  employed  by  Perkins  and  Payne  to  build  a  hotel  at 
Nahant,  which  was  begun  in  that  year  and  finished  in  1823. 

The  general  defence  was,  that  there  was  a  special  contract,  and  that 
the  work  had  been  paid  for  according  to  the  terms  of  that  contract. 

For  the  purposes  of  this  case  it  was  admitted  that  the  amount  of 
expenditures  made  and  incurred  by  the  plaintiff  in  and  about  the  work, 
exceeded  the  amount  of  the  payments  made  to  him. 

It  appeared  that  in  1821  a  number  of  persons  associated  themselves 
for  the  purpose  of  erecting  a  hotel  at  Nahant,  and  subscribed  certain 
sums  of  money  therefor ;  that  Perkins  and  Payne  were  subscribers, 
and  were  the  agents  of  the  association,  which  was  to  be  incorporated  as 
soon  as  possible,  and  which  was  incoiporated  accordingly  in  February, 
1822. 

The  defendant  offered  in  evidence  an  agreement  under  seal,  dated 
October  24,  1821,  wherein  the  plaintiff  engages  to  build  the  hotel  ac- 
cording to  a  certain  drawing  and  description,  and  the  defendant  and 
Payne,  in  behalf  of  their  associates,  agree  to  pay  the  plaintiff  therefor 
$14,500  as  the  work  advances. 

T.  W.  Sumner,  a  witness  called  by  the  defendant,  testified  that  the 
work  was  executed  upon  the  basis  of  the  drawing  and  description  re- 
ferred to  in  the  sealed  contract ;  that  there  were  some  deviations,  con- 
sisting of  additional  work ;  that  this  was  considered  as  extra  work, 
not  included  in  the  contract,  and  was  paid  for  separately  according  to 
its  full  cost  and  value. 

To  prove  a  waiver  of  the  special  contract,  the  plaintiff  introduced 
several  witnesses.  J.  Alley  testified  that  in  1825  he  said  to  the  de- 
fendant, it  was  a  pity  Munroe  had  undertaken  to  build  the  hotel ;  to 
which  the  defendant  replied,  that  Munroe  would  not  lose  anj'thing  by 
it,  and  that  the}'  had  agreed  to  pay  him  for  eveiy  minute's  work  and 
for  all  he  had  purchased.  J.  Mudge  testified  that  in  the  spring  of 
1823  the  plaintiff  was  indebted  to  the  Lynn  bank  on  a  note  for  $1,100. 


SECT.    II.]  MUNEOE   V.   PERKINS.  225 

which  he  wished  to  have  renewed,  but  that  the  directors  were  not 
satisfied  of  his  solvency  ;  that  in  April  of  that  year  the  plaintiff  came 
to  the  bank  with  Payne,  who  said  he  was  the  agent  who  attended 
to  the  business  of  the  Nahant  hotel  in  the  absence  of  Perkins,  who 
had  gone  to  Europe  ;  that  he  wanted  to  get  from  the  bank  some  indul- 
gence towaixls  the  plaintiff;  that  the  corporation  would  leave  the  plain- 
tiff as  good  as  they  found  him;  the}'  would  pay  Munroe  for  all  he 
should  lay  out ;  that  Munroe  should  not  stop  for  want  of  funds  ;  that 
he  (Payne)  knew  Perkins's  mind  upon  the  subject ;  that  the  bills  would 
be  paid,  and  the  plaintiff  should  not  suffer.  W.  Johnson  testified  that 
on  the  strength  of  this  representation  of  Pa3'ne,  the  bank  renewed  the 
plaintiff's  paper.  W.  Babb  testified  that  in  May,  1822,  the  defendant 
asked  the  plaintiff  how  he  got  on ;  that  the  plaintiff  said,  poorly 
enough ;  that  the  defendant  told  him  he  must  persevere  ;  the  plaintiff 
said  he  could  not  without  means  ;  and  the  defendant  repeated,  "  You 
must  persevere,"  and  added,  "  You  shall  not  suffer,  we  shall  leave  j'ou 
,  as  we  found  \'OU." 

The  defendant  objected  to  this  evidence  that  it  was  insuflScient  in 
law  to  set  aside  the  special  contract ;  that  it  did  not  amount  to  a  waiver 
of  the  original  contract,  but  so  far  as  it  proved  anything,  it  was  evi- 
dence of  a  new  express  promise,  which  was  without  consideration  and 
from  which  no  implied  assumpsit  could  be  raised.  Also,  that  the 
conversation  with  Perkins  at  one  time  and  with  Payne  at  another 
were  not  joint  promises  and  created  no  joint  cause  of  action,  but  that 
the  liability,  if  there  was  an}',  was  several. 

A  verdict  was  taken  b}'  consent,  subject  to  the  opinion  of  the  court. 
S.  Hubbard  and  F.  Dexter,  for  the  defendant. 
Ward,  contra. 

Per  Curiam.  The  verdict  of  the  jury  has  established  the  fact,  if 
the  evidence  was  legalh'  suflacient,  that  the  defendant  together  with 
Pa3'ne,  made  the  promise  declared  on.  The  defence  set  up  was  that 
the  work  was  done  and  the  materials  were  furnished  on  a  special  con- 
tract under  seal,  made  b\'  the  defendant  and  Payne  on  behalf  of  them- 
selves and  other  subscribers  to  the  hotel ;  and  such  a  contract  was 
produced  in  evidence.  The  main  question  is,  whether,  there  being  this 
contract  under  seal  for  a  stipulated  sum,  an  action  lies  on  a  general 
assumpsit  for  the  amount  which  the  building  actualh'  cost ;  which  is 
more  than  the  sum  specified  in  the  contract.  It  is  said  on  the  part  of 
the  plaintiff  that,  having  made  a  losing  bargain  and  being  unwilling 
and  unable  to  go  on  with  the  work,  Perkins  and  Payne  assured  him 
that  he  should  not  suffer ;  and  that  the  work  was  carried  on  and 
finished  upon  their  engagement  and  promise  that  he  should  have  a 
reasonable  compensation,  without  regard  to  the  special  contract.  This 
engagement  is  to  be  considered  as  proved,  if  by  law  it  was  admissible 
to  show  a  waiver  of  a  special  contract. 

It  is  objected  that,  as  the  evidence  was  parol,  it  is  insufficient  in 
law  to  defeat  or  avoid  the  special  contract ;  and  many  authorities  have 

VOL.    I. 15 


220  MUNROE   V.   PERKINS.  [CHAP.   l/ 

been  cited  to  show  that  a  sealed  contract  cannot  be  avoided  or  waived 
but  by  an  instrument  of  a  like  nature  ;  or  generally,  that  a  contract 
under  seal  cannot  be  avoided  or  altered  or  explained  by  parol  evidence. 
That  this  is  the  general  doctrine  of  tiie  law  cannot  be  disputed.  It 
seems  to  have  emanated  from  the  common  maxim,  Umimquodque  dis- 
sohntur  eo  lir/amine  quo  ligatur.  But,  like  other  maxims,  this  has 
received  qualifications,  and  indeed  was  never  true  to  the  letter,  for  at 
all  times  a  bond,  covenant,  or  other  sealed  instrument  might  be  de- 
feated by  parol  evidence  of  payment,   accord  and  satisfaction,  &c. 

It  is  a  general  principle  that  where  there  is  an  agreement  in  writ- 
ing, it  merges  all  previous  conversations  and  parol  agreements  ;  but 
there  are  many  cases  in  which  a  new  parol  contract  has  been  admitted 
to  be  proved.  And  though  wheti  the  suit  is  upon  the  written  contract 
itself  it  has  been  held  that  parol  evidence  should  not  be  received, 
3'et  when  the  suit  has  been  brought  on  the  ground  of  a  new  subsequent 
agreement  not  in  writing,  parol  evidence  has  been  admitted. 

In  Ratcliff  v.  Pemberton,  1  Esp.  R.  35,  Lord  Kenyon  decided  that, 
to  an  action  of  covenant  on  a  charter-party  for  the  demurrage  which 
was  stipulated  in  it,  the  defendant  might  plead  that  the  covenantee, 
who  was  the  master  and  owner  of  the  ship,  verbally  permitted  the 
delay,  and  agreed  not  to  exact  any  demurrage,  but  waived  all  claim  to 
it.  He  laid  down  a  similar  rule  in  Thresh  v.  Rake,  ibid.  53  ;  where, 
however,  the  contract  does  not  appear  to  have  been  under  seal. 

In  2  T.  R.  483,  there  were  articles  of  partnership,  containing  a  cove- 
nant to  account  at  certain  times  ;  and  upon  a  balance  being  struck,  the 
defendant  promised  to  pay  the  amount  of  the  balance  ;  and  it  was  held 
that  assumpsit  would  lie  upon  this  promise. 

The  case  of  Lattimore  et  al.  v.  Harsen,  14  Johns.  R.  330,  comes 
nearer  the  case  at  bar.  There  the  plaintiffs  had  agreed  to  perform 
certain  work  for  a  stipulated  sum  of  money,  under  a  penalty.  After 
they  had  entered  upon  the  performance  of  it,  they  determined  to  leave 
off,  and  the  defendant,  by  parol,  released  them  from  their  covenant, 
and  promised  them,  if  they  would  complete  the  work,  that  he  would 
pay  them  by  the  day.  The  court  held  that  if  the  plaintiffs  chose  to 
incur  the  penalty,  thej'  had  a  right  to  do  so,  and  that  the  new  contract 
was  binding  on  the  defendant. 

In  Dearborn  v.  Cross,  7  Cowen,  48,  it  is  held  that  a  bond  or  other 
specialty  may  be  discharged  or  released  b}'  a  parol  agreement  between 
the  parties,  especially  where  the  parol  agreement  is  executed ;  and  the 
case  of  Lattimore  v.  Harsen  is  there  cited  and  relied  on. 

There  are  other  decisions  of  like  nature  in  the  same  court ;  as  Flem- 
ing V.  Gilbert,  3  Johns.  R.  528  ;  Keating  v.  Price,  1  Johns.  Cas.  22 ; 
Edwin  V,  Saunders,  1  Cowen,  250.  In  Ballard  v.  Walker,  3  Johns. 
Cas.  64,  it  was  held  that  the  lapse  of  time  between  the  making  of  the 
contract  and  the  attempt  to  enforce  it  was  a  waiver ;  which  is  going 
further  than  is  necessary  in  the  case  before  us,  for  here  there  is  as 
express  waiver. 


SECT.    II.]  MTJNEOE   V.   PEEKINS.  227 

In  Le  Fevre  v.  Le  Fevre,  4  Serg.  &  R.  241,  parol  evidence  was  ad- 
mitted to  prove  an  alteration  of  the  course  of  an  aqueduct  established 
by  deed.  In  regard  to  the  objection  that  this  evidence  was  in  direct 
conti'adiction  to  the  deed,  Duncan,  J.  remarks  that  "  the  evidence  was 
not  offered  for  that  purpose,  but  to  show  a  substitution  of  another  spot. 
If  this  had  not  been  carried  into  effect  the  evidence  would  not  have 
been  admissible ;  but  where  the  situation  of  the  parties  is  altered  b^' 
acting  upon  the  new  agreement,  the  evidence  is  proper ;  for  a  party 
may  be  admitted  to  prove  b}'  parol  evidence,  that  after  signing  a 
written  agreement,  the  parties  made  a  verbal  agreement,  varying  the 
former,  provided  their  variations  have  been  acted  upon,  and  the  original 
agreement  can  no  longer  be  enforced  without  a  fraud  on  one  party." 

The  distinction  taken  in  the  argument,  between  contracts  in  writing 
merely  and  contracts  under  seal,  appears  bj'  these  authorities  not  to  be 
important  as  it  respects  the  point  under  consideration,  and  justice 
required  in  the  present  case,  that  the  parol  evidence  should  be 
received. 

It  was  said  that  the  promise  of  Payne  cannot  affect  Perkins,  and 
.vice  versa.  But  as  tliey  were  joint  actors,  and  as  when  one  acted  in 
the  absence  of  the  other,  it  was  always  with  a  joint  view  to  the  same 
object,  they  cannot  be  separated,  but  must  be  considered  as  joint 
promisors. 

The  parol  promise,  it  is  contended,  was  without  consideration.  This 
depends  entirely  on  the  question  whether  the  first  contract  was  waived. 
The  plaintiff  having  refused  to  perform  that  contract,  as  he  might  do, 
subjecting  himself  to  such  damages  as  the  other  parties  might  show 
they  were  entitled  to  recover,  he  afterwards  went  on  upon  the  faith  of 
the  new  promise  and  finished  the  work.  This  was  a  sufficient  con- 
sideration. If  Payne  and  Perkins  were  willing  to  accept  his  relin- 
quishment of  the  old  contract  and  proceed  on  a  new  agreement,  the 
law,  we  think,  would  not  prevent  it. 

Motion  for  new  trial  overruled. 

^  Stoudenmeier  v.  Williamson,  29  Ala.  558 ;  Bishop  v.  Busse,  69  HI.  403  ;  Cooke  v. 
Murphy,  70  111.  96  ;  Coyner  v.  Lynde,  10  Ind.  282  ;  Holmes  v.  Doane,  9  Cush,  135 ; 
Eollins  V.  Mar.sh,  128  Mass.  116  ;  Rogers  v.  Rogers,  139  Mass.  440  ;  Thomas  v.  Barnes, 
156  Mass.  581,  584  ;  Brighara  v.  Herrick,  173  Mass.  460,  467  ,  Moore  v.  Detroit  Loco- 
motive Works,  14  Mich.  266;  Goebel  v.  Linn,  47  Mich.  489  ;  Conkling  v.  Tuttle,  52 
Mich.  130  ;  Osborne  v.  O'Reilly,  42  N.  J.  Eq.  467  ;  Lattimore  v.  Harsen,  14  Johns. 
330 ;  Stewart  v.  Keteltas,  36  N.  Y.  388,  ace.  See  also  Peck  v.  Requa,  13  Gray,  407  ; 
Hansen  v.  Gaar,  63  Minn.  94  ;  Gaar  v.  Green,  6  N.  Dak.  48 ;  Dreifus  v.  Columbian  Co., 
194  Pa.  475. 


228      LINQENFELDBB   V.   WAIN  WEIGHT  BREWING  CO.      [CHAP.  I. 


LINGENFELDER  et.  al.,  Executors,  v.  THE  WAIN  WRIGHT 
BREWING   COMPANY,   Appellant. 

Missouri  Supreme  Court,  October  Term,  1890. 

[Reported  in  103  Missouri,  578.1] 

Gantt,  p.  J. — The  referee  found  that  Jungenfeld,  the  plaintiffs' 
testator,  was  not  entitled  to  the  commission  of  five  per  cent  on  the 
cost  of  the  refrigerator  plant.  He  found  that  Jungenfeld's  employ- 
ment as  architect  was  to  design  plans  and  make  drawings  and  speci- 
fications for  certain  brewery  buildings  for  the  Waiuwright  Brewery 
Company  and  superintend  their  construction  to  completion  for  a  com- 
mission of  five  per  cent  on  the  cost  of  the  buildings.  He  found 
further  that  Jungenfeld's  contract  did  not  include  the  refrigerator 
plant  that  was  to  be  constructed  in  these  buildings.  He  further 
found,  and  the  evidence  does  not  seem  to  admit  of  a  doubt  as  to  the 
propriety  of  his  finding,  that  this  refrigerator  plant  was  ordered  not 
only  without  Mr.  Jungenfeld's  assistance,  but  against  his  wishes. 
He  was  in  no  way  connected  with  its  erection. 

"Mr.  Jungenfeld  was  president  of  the  Empire  Refrigerating  Com- 
pany and  largely  interested  therein.  .  .  .  The  De  La  Vergne  Ice 
Machine  Company  was  a  competitor  in  business.  .  .  .  Against  Mr. 
Jungenfeld's  wishes  Mr.  Wainwright  awarded  the  contract  for  the 
refrigerating  plant  to  the  De  La  Vergne  Company.  .  .  .  The  brewery 
was  at  that  time  in  process  of  erection  and  most  of  the  plans  were 
made.  When  Mr.  Jungenfeld  heard  that  the  contract  was  awarded  he 
took  his  plans,  called  off  his  superintendent  on  the  ground,  and  noti- 
fied Mr.  Wainwright  that  he  would  have  nothing  more  to  do  with  the 
brewery.  The  defendant  was  in  great  haste  to  have  its  new  brewery 
completed  for  divers  reasons.  It  would  be  hard  to  find  an  architect 
in  Mr.  Jungenfeld's  place  and  the  making  of  new  plans  and  arrange- 
ments when  another  architect  was  found  would  involve  much  loss  of 
time.  Under  these  circumstances  Mr.  Wainwi-ight  promised  to  give 
Jungenfeld  five  per  cent  on  the  cost  of  the  De  La  Vergne  ice  ma- 
chine if  he  would  resume  work.  Jungenfeld  accepted  and  fulfilled 
the  duties  of  superintending  architect  till  the  completion  of  the 
brewery. 

"As  1  understand  the  facts  and  as  I  accordingly  formally  find,  de- 
fendant promised  Jungenfeld  a  bonus  to  resume  work  and  complete 
the  original  contract  under  the  original  terms. 

"I  accordingly  submit  that  in  my  view  defendant's  promise  to 
pay  Jungenfeld  five  per  cent  on  the  cost  of  the  refrigerating  plant 
was  without  consideration,  and  recommend  that  the  claim  be  not 
allowed. " 

^  The  statement  of  the  case  and  a  portion  of  the  opinion  is  omitted. 


SECT.   II.]      LINGENFELDER   V.    WACNWRIGHT   BREWING   CO.      229 

The  referee  also  finds  "that  Mr.  Jungenfeld  never  claimed  that  de- 
fendant had  broken  the  contract  or  intended  to  do  so,  or  that  any  of 
his  legal  rights  had  been  violated." 

The  learned  circuit  judge,  upon  this  state  of  facts,  held  that  the 
defendant  was  liable  on  this  promise  of  Wainwright  to  pay  the  addi- 
tional five  per  cent  on  the  refrigerator  plant.  The  point  was  duly 
saved,  and  from  the  decision  this  appeal  is  taken. 

"Was  there  any  consideration  for  the  promise  of  Wainwright  to  pay 
Jungenfeld  five  per  cent  on  the  refrigerator  plant?  If  there  was  not, 
plaintiff  cannot  recover  the  $3,449.75,  the  amount  of  that  commis- 
sion. The  report  of  the  referee,  and  the  evidence  upon  which  it  is 
based,  alike  show  that  Jungenfeld's  claim  to  this  extra  compensation 
is  based  upon  Wainwright's  promise  to  pay  him  this  sum  to  induce 
him,  Jungenfeld,  to  complete  his  original  contract  under  its  original 
terms. 

It  is  urged  upon  us  by  respondents  that  this  was  a  new  contract. 

New  in  what?  Jungenfeld  was  bound  by  his  contract  to  design 
and  supervise  this  building.  Under  the  new  promise  he  was  not  to 
do  anything  more  or  anything  different.  What  benefit  was  to  accrue 
to  Wainwright?  He  was  to  receive  the  same  service  from  Jungenfeld 
under  the  new  that  Jungenfeld  was  bound  to  tender  under  the  origi- 
nal contract.  What  loss,  trouble,  or  inconvenience  could  result  to 
Jungenfeld  that  he  had  not  already  assumed?  No  amount  of  meta- 
physical reasoning  can  change  the  plain  fact  that  Jungenfeld  took 
advantage  of  Wainwright' s  necessities,  and  extorted  the  promise  of 
five  per  cent  on  the  refrigerator  plant,  as  the  condition  of  his  com- 
plying with  his  contract  already  entered  into.  Nor  had  he  even  the 
flimsy  pretext  that  Wainwright  had  violated  any  of  the  conditions  of 
the  contract  on  his  part. 

Jungenfeld  himself  put  it  upon  the  simple  proposition  that,  "if  he, 
as  an  architect,  put  up  the  brewery,  and  another  company  put  up  the 
refrigerating  machinery,  it  would  be  a  detriment  to  the  Empire  Re- 
frigerating Company  "  of  which  Jungenfeld  was  president.  To  per- 
mit plaintiff  to  recover  under  such  circumstances  would  be  to  offer 
a  premium  upon  bad  faith,  and  invite  men  to  violate  their  most 
sacred  contracts  that  they  may  profit  by  their  own  wrong. 

"  That  a  promise  to  pay  a  man  for  doing  that  which  he  is  already 
under  contract  to  do  is  without  consideration,"  is  conceded  by  re- 
spondents. The  rule  has  been  so  long  imbedded  in  the  common  law 
and  decisions  of  the  highest  courts  of  the  various  States  that  nothing 
but  the  most  cogent  reasons  ought  to  shake  it.  Harris  v.  Carter, 
3  E.  &  B.  559;  Stilk  v.  Myrick,  2  Camp.  317;  1  Chitty  on  Contracts 
[11  Amer.  Ed.]  60;  Bartlett  v.  Wyman,  14  Johns.  260;  Reynolds  v. 
Nugent,  25  Ind.  328;  Ayres  v.  Railroad,  52  Iowa,  478;  Festerman 
V.  Parker,  10  Ind.  474;  Eblin  v.  Miller,  78  Ky.  371;  Sherwin  &  Co. 
V.  Brigham,  39  Ohio  St.  137  ;  Overdeer  v.  Wiley,  30  Ala.  709  ;  Jones  v. 
Miller,  12  Mo.  408;  Kick  v.  Merry,  23  Mo.  72;  Laidlou  v.  Hatch,  75 


280      LINGENrELDER   V.    WAINWRIGHT   BREWING   CO.       [CHAP.    I. 

111.  11;  Wimer  v.  Overseers  of  Poor,  104  Penn.  St.  317;  Cobb  v. 
Cowdery,  40  Vt.  25;  Vanderbilt  v.  Scbreyer,  91  N.  Y.  392. 

But  ''  it  is  carrying  coals  to  Newcastle  "  to  add  authorities  on  a 
proposition  so  uuiversall}'  accepted  and  so  inherently  just  and  right 
in  itself.  The  learned  counsel  for  respondents  do  not  controvert  the 
general  proposition.  Their  contention  is,  and  the  circuit  court 
agreed  with  them,  that,  when  Jungenfeld  declined  to  go  further  on 
his  contract,  the  defendant  then  had  the  right  to  sue  for  damages, 
and  not  having  elected  to  sue  Jungenfeld,  but  having  acceded  to  his 
demand  for  the  additional  compensation,  defendant  cannot  now  be 
heard  to  say  his  promise  is  without  consideration.  While  it  is  true 
Jungenfeld  became  liable  in  damages  for  the  obvious  breach  of  his 
contract,  we  do  not  think  it  follows  that  defendant  is  estopped  from 
showing  its  promise  was  made  without  consideration. 

It  is  true  that  as  eminent  a  jurist  as  Judge  Cooley,  in  Goebel  v. 
Linn,  47  Michigan,  489,  held  that  an  ice  company  which  had  agreed 
to  furnish  a  brewery  with  all  the  ice  they  might  need  for  their  busi- 
ness from  November  8,  1879,  until  January  1,  1881,  at  $1.75  per 
ton,  and  afterwards  in  May,  1880,  declined  to  deliver  any  more  ice 
unless  the  brewery  would  give  it  $3  per  ton,  could  recover  on  a 
promissory  note  given  for  the  increased  price.  Profound  as  is  our 
respect  for  the  distinguished  judge  who  delivered  that  opinion,  we 
are  still  of  the  opinion  that  his  decision  is  not  in  accord  with  the 
almost  universally  accepted  doctrine  and  is  not  convincing,  and  cer- 
tainly so  much  of  the  opinion  as  holds  that  the  payment  by  a  debtor 
of  a  part  of  his  debt  then  due  would  constitute  a  defence  to  a  suit 
for  the  remainder  is  not  the  law  of  this  State,  nor  do  we  think  of  any 
other  where  the  common  law  prevails. 

The  case  of  Bishop  v.  Busse,  69  111.  403,  is  readily  distinguishable 
from  the  case  at  bar.  The  price  of  brick  increased  very  considerably, 
and  the  owner  changed  the  plan  of  the  building,  so  as  to  require 
nearly  double  the  number;  owing  to  the  increased  price  and  change 
in  the  plans,  the  contractor  notified  the  party  for  whom  he  was  build- 
ing, that  he  could  not  complete  the  house  at  the  original  prices,  and, 
thereupon,  a  new  arrangement  was  made,  and  it  is  expressly  upheld 
by  the  court  on  the  ground  that  the  change  in  the  buildings  was  such 
a  modification  as  necessitated  a  new  contract.  Nothing  we  have  said 
is  intended  as  denying  parties  the  right  to  modify  their  contracts,  or 
make  new  contracts,  upon  new  or  different  considerations  and  bind- 
ing themselves  thereby. 

What  we  hold  is  that,  when  a  party  merely  does  what  he  has 
already  obligated  himself  to  do,  he  cannot  demand  an  additional 
compensation  therefor,  and,  although  by  taking  advantage  of  the 
necessities  of  his  adversary,  he  obtains  a  promise  for  more,  the  law 
will  regard  it  as  nudum  2J^ctiim,  and  will  not  lend  its  process  to  aid 
in  the  wrong.  ^ 

-  Harris  i;.  Watson,  Teake,  72;  Stilk  v.  Myrick,  2  Camp.  317;  Fraser  v.  Hatton, 
2  C.  B.  N.  s.  ^"\«» ;  Jackson  v.  Cobbin,  8  M.  &.  W.  790  ;   Mallalieu  v.  Hodgson,  16  Q.B. 


SECT.    II.]       KING   V.    DULUTH,    MISSABE,    ETC.,    RY.    CO.  231 


GEORGE   R.   KING  v.   DULUTH,   MISSABE  &  NORTHERN 
RAILWAY   COMPANY. 

Minnesota  Supreme  Court,  June  28,  1895. 

[Reported  in  61  Minnesota,  482.] 

Start,  C.  J.  This  is  an  action  brought  by  the  plaintiff,  as  sur- 
viving partner  of  the  firm  of  Wolf  &  King,  to  recover  a  balance 
claimed  to  be  due  for  the  construction  of  a  portion  of  the  defendant's 
line  of  railway.  The  complaint  alleges  two  supposed  causes  of  action, 
to  each  of  which  the  defendant  demurred  on  the  ground  that  neither 
states  facts  constituting  a  cause  of  action.  From  an  order  overrul- 
ing the  demurrer  the  defendant  appealed. 

1.  The  complaint  for  a  first  cause  of  action  alleges,  among  other 
things,  substantially,  that  in  January,  1893,  the  firm  of  Wolf  &  King 
entered  into  three  written  contracts  with  the  president  and  representa- 
tive of  the  defendant  for  the  grading,  clearing,  grubbing,  and  con- 
struction of  the  roadbed  of  its  railway  for  a  certain  stipulated  price 
for  each  of  the  general  items  of  work  and  labor  to  be  performed ; 
that  the  firm  entered  upon  the  performance  of  such  contracts,  but  in 
the  latter  part  of  February,  1893,  in  the  course  of  such  performance, 
unforeseen  difficulties  of  construction  involving  unexpected  expenses, 
and  such  as  were  not  anticipated  by  the  parties  to  the  contracts,  were 
encountered.  That  the  firm  of  Wolf  &  King  found  that  by  reason 
of  such  difficulties  it  would  be  impossible  to  complete  the  contracts 
within  the  time  agreed  upon  without  employing  an  additional  and  an 
unusual  force  of  men  and  means,  and  at  a  loss  of  not  less  than 
$40,000  to  them,  and  consequently  they  notified  the  representative 
of  the  defendant  that  they  would  be  unable  to  go  forward  with  the 
contracts,  and  unable  to  complete  or  prosecute  the  work.  Thereupon 
such  representative  entered  into  an  agreement  with  them  modifying 
the  written  contracts,  whereby  he  agreed  that  if  they  would  "^  for- 

689  ;  Harris  v.  Carter,  3  E.  &  B.  559  ;  Alaska  Packers'  Assoc,  v.  Domenico,  117  Fed. 
Rep.  99  (C.  C.  A.);  Main  Street  Co.  v.  Los  Angeles  Co.,  129  Cal.  301  ;  Nelson  v. 
Pickwick  Associated  Co.,  30  111.  App.  333  ;  Goldsborough  v.  Gable,  140  111.  269 ;  Mo- 
ran  V.  Peace,  72  HI.  App.  135,  139  ;  Allen  v.  Rouse,  78  111.  App.  69  ;  Mader  v.  Cool,  14 
Ind.  App.  299  ;  Avres  v.  Chicago,  &c.  R.  R.  Co.,  52  la.  478  ;  McCarty  v.  Hampton 
Building  Assoc,  61  la.  287  ;  Westcott  v.  Mitchell,  95  Me.  377  ;  Storck  v.  Mesker,'55 
Mo.  App.  26  ;  Esterly  Co.  v.  Pringle,  41  Neb.  265  ;  Voorhees  v.  Combs,  33  N.  J.  L. 
494 ;  Bartlett  v.  Wyman,  14  .Johns.  260 ;  Vanderbilt  v.  Schreyer,  91  N.  Y.  392 ;  Car- 
penter V.  Taylor,  164  N.  Y.  171  ;  Schneider  v.  Henschenheimer,  55  N.  Y.  Supp.  630; 
Fe.sterman  v.  Parker,  10  Ired.  474  ;  Gaar  v.  Green,  6  N.  Dak.  48  ;  Erb  v.  Brown,  69 
Pa.  216;  .Tones  c.  Risley,  91  Tex.  1  ;  Tolmie  v.  Dean,  1  Wash.  Ter.  46;  Magoon  v. 
Marks,  11  Hawaii,  764,  ace.  See  also  Hartley  v.  Pousonhy,7  E.  &  B.  872  ;  Eastman  v. 
Miller,  113  la.  404  ;  Proctor  ?•.  Keith,  12  B.  Mon.  252  ;  Eblin  v.  Miller's  Exec.  78  Kj. 
371;  Endriss  v.  Belle  Isle  Ice  Co.,  49  Mich.  279;  Conover  v.  Stilwell,  34  N.  J.  L. 
54,  57. 


232     J  KING   V.   DULUTH,   ISHSSABE,    ETC.,    RY.    CO.       [CHAP.  I. 

wardand_j3ros£Cute  tbe-sarid  work-of  constructioDj^and  coinplete,&aia- 
contract,"  he  would  pay  or  cause  to  be  paid  to  them  an  additional 
consideration  therefor,  up  to  the  full  extent  of  the  cost  of  the  work, 
so  that  they  should  not  be  compelled  to  do  the  work  at  a  loss  to 
themselves;  that  in  consideration  of  such  promise  they  agreed  to 
forward  the  work  rapidly,  and  force  the  same  to  completion,  in  the 
manner  provided  in  the  specifications  for  such  work,  and  referred 
to  in  such  contracts.  That  in  reliance  upon  the  agreement  modifj'- 
ing  the  former  contracts,  and  in  reliance  upon  such  former  contracts, 
they  did  prosecute  and  complete  the  work  in  accordance  with  the  con- 
tracts as  so  modified  by  the  oral  agreement,  to  the  satisfaction  of  all 
parties  in  interest.  That  such  contracts  and  the  oral  contract  modify- 
ing them  were  duly  ratified  by  the  defendant,  and  that  the  actual  cost 
of  such  construction  was  not  less  than  $30,000  in  excess  of  the  stipu- 
lated amount  provided  for  in  the  original  written  contracts. 

It  is  claimed  by  appellant  that  the  complaint  shows  no  considera- 
tion for  the  alleged  promise  to  pay  extra  compensation  for  the  work ; 
that  it  is  at  best  simply  a  promise  to  paj'  the  contractors  an  addi- 
tional compensation  if  they  would  do  that  which  they  were  already 
legally  bound  to  do.  The  general  rule  is  that  a  promise  of  a  party 
to  a  contract  to  do,  or  the  doing  of,  that  which  he  is  already  under 
a  legal  obligation  to  do  by  the  terms  of  the  contract  is  not  a  valid 
consideration  to  support  the  promise  of  the  other  party  to  pay  an 
additional  compensation  for  such  performance.  1  Chitty,  Cont.  60; 
Pollock,  Cont.  176  (161);  Leake,  Cont.  621.  In  other  words,  a 
promise  by  one  party  to  a  subsisting  contract  to  the  opposite  party 
to  prevent  a  breach  of  the  contract  on  his  part  is  without  considera- 
tion. The  following  cases  sustain  and  illustrate  the  practical  appli- 
cation of  the  rule.  Ayres  v.  Chicago,  R.  I.  &  P.  R.  Co.,  52  Iowa, 
478,  3  N.  W.  522;  McCarty  t\  Hampton  B.  Ass'n,  61  Iowa,  287, 
16  N.  W.  114;  Lingenfelder  ?;.  Wainwright  B.  Co.,  103  Mo.  578,  15 
S.  W.  844;  Vanderbilt  v.  Schreyer,  91  N.  Y.  392;  Reynolds  v.  Nu- 
gent, 25  Ind.  328;  Robinson  v.  Jewett,  116  N.  Y.  40,  22  N.  E.  224; 
Wimer  v.  Worth  Tp.,  104  Pa.  St.  317. 

If  the  allegations  of  the  complaint,  when  taken  together,  are  in 
legal  effect  simply  that  the  contractors,  finding  by  the  test  of  ex- 
perience in  the  prosecution  of  the  work  that  they  had  agreed  to  do 
that  which  involved  a  greater  expenditure  of  money  than  they  calcu- 
lated upon,  that  they  had  made  a  losing  contract,  and  thereupon  noti- 
fied the  opposite  party  that  they  were  unable  to  proceed  with  the 
work,  and  he  promised  them  extra  compensation  if  they  would  per- 
form their  contract,  the  case  is  within  the  rule  stated,  and  the  de- 
murrer ought  to  have  been  sustained  as  to  the  first  cause  of  action. 

It  is  claimed,  however,  by  the  respondent,  that  such  is  not  the 
proper  construction  of  the  complaint,  and  that  its  allegations  bring 
the  case  within  the  rule  adopted  in  several  States,  and  at  least  ap- 
proved in  our  own,  to  the  effect  that  if  one  party  to  a  contract  refuses 


SECT.    11.]      KING    V.   DULUTH,    MISS  ABE,    ETC.,   RY.    CO.  233 

to  perform  his  part  of  it  unless  promised  some  further  pay  or  benefit 
than  the  contract  provides,  and  such  promise  is  made  by  the  other 
party,  it  is  supported  by  a  valid  consideration,  for  the  making  of  the 
new  promise  shows  a  rescission  of  the  original  contract  and  the  sub- 
stitution of  another.  In  other  words,  that  the  party,  by  refusing  to 
perform  his  contract,  thereby  subjects  himself  to  an  action  for  dam- 
ages, and  the  opposite  party  has  his  election  to  bring  an  action  for 
the  recovery  of  such  damages  or  to  accede  to  the  demands  of  his  ad- 
versary and  make  the  promise;  and  if  he  does  so  it  is  a  relinquish- 
ment of  the  original  contract  and  the  substitution  of  a  new  one. 
Munroeu.  Perkins,  9  Pick.  298;  Bryant  t;.  Lord,  19  Minn.  342  (396); 
Moore  v.  Detroit  L.  Works,  14  Mich.  266;  Goebel  v.  Linn,  47  Mich. 
489,  11  N.  W.  284;  Rogers  v.  Rogers,  139  Mass.  440,  1  N.  E.  122. 

The  doctrine  of  these  cases  as  it  is  frequently  applied  does  not 
commend  itself  either  to  our  judgment  or  our  sense  of  justice,  for 
where  the  refusal  to  perform  and  the  promise  to  pay  extra  compensa- 
tion for  performance  of  the  contract  are  one  transaction,  and  there 
are  no  exceptional  circumstances  making  it  equitable  that  an  in- 
creased compensation  should  be  demanded  and  paid,  no  amount  of 
astute  reasoning  can  change  the  plain  fact  that  the  party  who  refuses 
to  perform,  and  thereby  coerces  a  promise  from  the  other  party  to  the 
contract  to  pay  him  an  increased  compensation  for  doing  that  which 
he  is  legally  bound  to  do,  takes  an  unjustifiable  advantage  of  the 
necessities  of  the  other  party.  To  hold,  under  such  circumstances, 
that  the  party  making  the  promise  for  extra  compensation  is  pre- 
sumed to  have  voluntarily  elected  to  relinquish  and  abandon  all  of 
his  rights  under  the  original  contract,  and  to  substitute  therefor  the 
new  or  modified  agreement,  is  to  wholly  disregard  the  natural  in- 
ference to  be  drawn  from  the  transaction,  and  invite  parties  to  repu- 
diate their  contract  obligation  whenever  they  can  gain  thereby. 

There  can  be  no  legal  presumption  that  such  a  transaction  is  a 
voluntary  rescission  or  modification  of  the  original  contract,  for  the 
natural  inference  to  be  drawn  from  it  is  otherwise  in  the  absence  of 
any  equitable  considerations  justifying  the  demand  for  extra  pay. 
In  such  a  case  the  obvious  inference  is  that  the  party  so  refusing  to 
perform  his  contract  is  seeking  to  take  advantage  of  the  necessities 
of  the  other  party  to  force  from  him  a  promise  to  pay  a  further  sum 
for  that  which  he  is  already  legally  entitled  to  receive.  Surely  it 
would  be  a  travesty  on  justice  to  hold  that  the  party  so  making  the 
promise  for  extra  pay  was  estopped  from  asserting  that  the  promise 
was  without  consideration.  A  party  cannot  lay  the  foundation  of  an 
estoppel  by  his  own  wrong.  If  it  be  conceded  that  by  the  new  prom- 
ise the  party  obtains  that  which  he  could  not  compel,  viz.  a  specific 
performance  of  the  contract  by  the  other  party,  still  the  fact  remains 
that  the  one  party  has  obtained  thereby  only  that  which  he  was  legally 
entitled  to  receive,  and  the  other  party  has  done  only  that  which  he 
was  legally  bound  to  do.     How,  then,  can  it  be  said  that  the  legiil 


234  KING   V.    DULUTH,   MISSABE,   ETC.,    RT.   CO.       [CHAP.   I. 

rights  or  obligations  of  the  party  are  changed  by  the  new  promise? 
It  is  entirely  competent  for  the  parties  to  a  contract  to  modify  or  to 
waive  their  rights  under  it,  and  ingraft  new  terms  upon  it,  and  in 
such  a  case  the  pi'omise  of  one  party  is  the  consideration  for  that  of 
the  other;  but  where  the  promise  to  the  one  is  simply  a  repetition  of 
a  subsisting  legal  promise  there  can  be  no  consideration  for  the 
promise  of  the  other  party,  and  there  is  no  warrant  for  inferring  that 
the  parties  have  voluntarily  rescinded  or  modified  their  contract. 

But  where  the  party  refusing  to  complete  his  contract  does  so  by 
reason  of  some  unforeseen  and  substantial  difficulties  in  the  perform- 
ance of  the  contract,  which  were  not  known  or  anticipated  by  the 
parties  when  the  contract  was  entered  into,  and  which  cast  upon  him 
an  additional  burden  not  contemplated  by  the  parties,  and  the  oppo- 
site party  promises  him  extra  pay  or  benefits  if  he  will  complete  his 
contract,  and  he  so  promises,  the  promise  to  pay  is  supported  by  a 
valid  consideration.  In  such  a  case  the  natural  inference  arising 
from  the  transaction,  if  unmodified  by  any  equitable  considerations, 
is  rebutted,  and  the  presumption  arises  that  by  the  voluntary  and 
mutual  promises  of  the  parties  their  respective  rights  and  obliga- 
tions under  the  original  contract  are  waived,  and  those  of  the  new  or 
modified  contract  substituted  for  them.  Cases  of  this  character  form 
an  exception  to  the  general  rule  that  a  promise  to  do  that  which  a 
party  is  already  legally  bound  to  do  is  not  a  sufficient  consideration 
to  support  a  promise  by  the  other  party  to  the  contract  to  give  the 
former  an  additional  compensation  or  benefit.  1  Whart.  Cont. 
§  500. 

On  the  other  hand,  where  no  unforeseen  additional  burdens  have 
been  cast  upon  a  party  refusing  to  perform  his  contract,  which  make 
his  refusal  to  perform,  unless  promised  further  pay,  equitable,  and 
such  refusal  and  promise  of  extra  pay  are  all  one  transaction,  the 
promise  of  further  compensation  is  without  consideration,  and  the 
case  falls  within  the  general  rule,  and  the  promise  cannot  be  legally 
enforced,  although  the  other  party  has  completed  his  contract  in 
reliance  upon  it.  This  proposition,  in  our  opinion,  is  correct  on 
principle  and  supported  by  the  weight  of  authority. 

What  unforeseen  difficulties  and  burdens  will  make  a  party's  re- 
fusal to  go  forward  with  his  contract  equitable,  so  as  to  take  the  case 
out  of  the  general  rule  and  bring  it  within  the  exception,  must  de- 
pend upon  the  facts  of  each  particular  case.  They  must  be  substan- 
tial, unforeseen,  and  not  within  the  contemplation  of  the  parties  when 
the  contract  was  made.  They  need  not  be  such  as  would  legally 
justify  the  party  in  his  refusal  to  perform  his  contract,  unless  prom- 
ised extra  pay,  or  to  justify  a  court  of  equity  in  relieving  him  from 
the  contract;  for  they  are  sufficient  if  they  are  of  such  a  character  as 
to  render  the  party's  demand  for  extra  pay  manifestly  fair,  so  as  to 
rebut  all  inference  that  he  is  seeking  to  be  relieved  from  an  un- 
satisfactory contract,  or  to  take  advantage  of  the  necessities  of  the 


SECT.   II.j      KING   V.  DtlLUTH,   MISSABE,   ETC.,   RY.   CO.  235 

opposite  party  to  coerce  from  him  a  promise  for  further  compen- 
sation. Inadequacy  of  the  contract  price  which  is  the  result  of  an 
error  of  judgment,  and  not  of  some  excusable  mistake  of  fact,  is  not 
sufficient. 

The  cases  of  Meech  v.  City  of  Buffalo,  29  N.  Y.  198,  where  the 
unforeseen  difficulty  in  the  execution  of  the  contract  was  quicksand, 
in  place  of  expected  ordinary  earth  excavation,  and  Michaud  v. 
MacGregor,  supra,  p,  198,  63  N.  W.  479,  where  the  unforeseen  ob- 
stacles were  rocks  below  the  surface  of  the  lots  to  be  excavated, 
which  did  not  naturally  belong  there,  but  were  placed  there  by  a 
third  party,  and  of  the  existence  of  which  both  parties  to  the  con- 
tract were  ignorant  when  the  contract  was  made,  are  illustrations  of 
what  unforeseen  difficulties  will  take  a  case  out  of  the  general  rule. 

Do  the  allegations  of  fact  contained  in  plaintiff's  first  alleged  cause 
of  action  bring  his  case  within  the  exception?  Clearly  not;  for  elimi- 
nating all  conclusions,  and  considering  only  the  facts  alleged,  there 
is  nothing  to  make  the  case  exceptional,  other  than  the  general  state- 
ment that  the  season  was  so  extraordinary  that  in  order  to  do  the 
stipulated  work  it  would  require  great  and  unusual  expense,  involving 
a  large  use  of  powder  and  extra  time  and  labor  for  the  purpose  of 
blasting  out  the  frozen  earth  and  other  material  which  was  en- 
countered. What  the  character  of  this  material  was  we  are  not  told, 
or  what  the  other  extraordinary  conditions  of  the  ground  were.  The 
court  will  take  judicial  knowledge  of  the  fact  that  frozen  ground  on 
the  Missabe  Range,  where  the  work  was  to  be  performed,  in  the 
month  of  February,  is  not  unusual  or  extraordinary.  It  was  a 
matter  which  must  have  been  anticipated  by  the  parties,  and  taken 
into  consideration  by  them  when  this  contract  was  made.  The  most 
that  can  be  claimed  from  the  allegations  of  the  complaint  is  that  the 
contractors  had  made  a  losing  bargain,  and  refused  to  complete  their 
contract,  and  the  defendant,  by  its  representative,  promised  them 
that  if  they  would  go  forward  and  complete  their  contract  it  would 
pay  them  an  additional  compensation,  so  that  the  total  compensation 
should  be  equal  to  the  actual  cost  of  the  work. 

2.  The  second  cause  of  action  is  supported  by  a  different  and  a 
valid  consideration.  It  fairly  appears  from  the  allegations  of  the 
complaint  as  to  this  cause  of  action  that  the  defendant,  by  changing 
its  line  and  by  its  defaults,  had  so  far  delayed  the  work  of  construc- 
tion as  to  legally  excuse  the  contractors  from  their  obligation  to 
complete  the  work  within  the  time  originally  agreed  upon,  and  that 
to  execute  the  work  within  such  time  would  involve  an  additional 
expense.  Thereupon,  in  consideration  of  their  waiving  the  defaults 
and  the  delays  occasioned  by  the  defendant,  and  promising  to  com- 
plete the  work  in  time,  so  that  it  could  secure  the  bonds,  it  promised 
to  pay  or  give  to  them  the  extra  compensation.  This  was  a  legal  con- 
sideration for  such  promise,  and  the  allegations  of  the  second  general 
subdivision  of  the  complaint  state  a  cause  of  action. 


236  BAGGE  V.   SLADE.  [CHAP.    I. 

So  much  of  the  order  appealed  from  as  overruled  the  defendant's 
demurrer  to  the  supposed  first  cause  of  action  in  the  plaintiff's  com- 
plaint must  be  reversed,  and  as  to  so  much  of  it  as  overruled  the  de- 
murrer to  the  second  cause  of  action  it  must  be  affirmed,  and  the 
case  remanded  to  the  district  court  of  the  county  of  St.  Louis  with 
the  direction  to  modify  the  order  appealed  from  so  as  to  sustain  the 
demurrer  as  to  the  first  cause  of  action,  with  or  without  leave  to  the 
plaintiff  to  amend,  as  such  court  may  deem  to  be  just. 

So  ordered. 


BAGGE  V.   SLADE. 
In  the  King's  Bench,  Easter  Term,   1616. 

[Reported  in  3  Bulstrode,  162.] 

In  a  writ  of  error  to  reverse  a  judgment  given  against  him  in  an 
action  upon  the  case  for  a  promise.  In  the  town  court  of  Yevell,  in 
Commitatu  Sominerset.  The  error  assigned,  and  insisted  upon,  was 
this,  because  there  wanted  a  good  consideration  to  raise  the  promise, 
and  so  no  cause  of  action. 

Coke,  C.  J.  The  case  was  this :  Two  men  were  bound  in  a  bond 
for  the  debt  of  a  third  man ;  the  obligation  being  forfeited,  so  that 
they  both  of  them  were  liable  to  pay  this;  the  plaintiff  here  in  this 
writ  of  error  said  to  the  other,  pay  you  all  the  debt,  and  I  will  pay 
you  the  moity  of  this  again,  the  which  he  paid  accordingly,  and  so 
made  his  request  to  have  a  repayment  made  to  him  of  the  moity  ac- 
cording to  his  promise,  which  to  do  he  refused;  upon  this  he  brought 
his  action  upon  the  case  against  the  plaintiff  upon  his  promise ;  and 
upon  non-assumpsit  pleaded  he  had  a  verdict  and  judgment;  and 
upon  this  judgment  a  Writ  of  Error  was  brought.  In  this  case,  and 
in  the  declaration,  there  is  a  good  consideration  set  forth;  the  par- 
ty's own  contract  here  shall  bind  him;  he  hath  no  remedy  for  the 
money  paid;  but  when  this  is  paid,  here  is  a  good  assumpsit, 
grounded  upon  a  good  consideration,  for  repayment  of  the  moity  by 
the  plaintiff. 

Hadghton,  J.  Notwithstanding  this  contract,  he  is  still  least  in 
danger  of  the  first  bond. 

Coke.  I  have  never  seen  it  otherwise,  but  when  one  draws  money 
from  another,  that  this  should  be  a  good  consideration  to  raise  a 
promise. 

Dodderidge,  J.  If  the  consideration  puts  the  other  to  charge, 
though  it  be  no  ways  at  all  profitable  to  him  who  made  the  promise, 
yet  this  shall  be  a  good  consideration  to  raise  a  promise. 

Coke  agreed  with  him  herein.  Also  if  a  man  be  bound  to  another 
by  a  bill  in  1000^.  and  be  pays  unto  him  500/.  in  discharge  of  this 


SECT,    n.]  SHADWELL   V.    SHADWELL.  237 

bill,  the  which  he  accepts  of  accordingly,  and  doth  upon  this  assume 
and  promise  to  deliver  up  unto  him  his  said  bill  of  1000/.,  this  5001. 
is  no  satisfaction  of  the  1000/. ;  but  yet  this  is  good,  and  sufficient 
to  make  a  good  promise,  and  upon  a  good  consideration,  because  he 
hath  paid  money,  sc.  500/.,  and  he  hath  no  remedy  for  this  again. 

Another  matter  was  moved,  that  the  entry  of  the  judgment  was  not 
good;  the  same  being  in  this  manner,  sc.  Ideo  consideratum  fait, 
adtunc,  &  ibidem^  hie  ad  eandem  curiam.^  quod  prcedicUis  qiierens 
recuperet. 

The  whole  Court  agreed  this  judgment  to  be  well  entered ;  and  that 
the  consideration  here  is  good,  and  sufficient  to  raise  the  promise,  and, 
accordingly,  the  rule  of  the  Court  was,  quod  JudiciuTn  affirmetur} 


SHADWELL  v.   SHADWELL  and  Another,  Executors,   &c. 
In  the  Common  Pleas,  November  26,   1860. 

[Reported  in  30  Lmw  Journal  Reports,  C.  P.  145.] 

The  declaration  stated  that  the  testator  in  his  lifetime,  in  consid- 
eration that  the  plaintiff  would  marry  Ellen  Nicholl,  agreed  with  and 
promised  the  plaintiff,  who  was  then  unmarried,  in  the  terms  contained 
in  a  writing  in  the  form  of  a  letter  addressed  by  the  said  testator  to  the 
plaintiff,  which  writing  was  and  is  in  the  words,  letters,  and  figures 
following,  that  is  to  say  :  — 

11th  August,  1838,  Grat's  Inn. 

My  dear  Lancey,  —  I  am  glad  to  hear  of  yoiu*  intended  marriage  with 
Ellen  XichoJl ;  and,  as  I  promised  to  assist  you  at  starting,  I  am  happy  to  tell 
you  that  I  will  pay  to  you  one  hundred  and  fifty  pounds  yearly  during  my  life, 
and  luitil  your  annual  income  derived  from  your  profession  of  a  chancery  bar- 
rister shall  amount  to  six  hundred  guineas,  of  which  your  own  admission  will 
be  the  only  evidence  that  I  shall  receive  or  require. 

Youi'  ever  affectionate  uucle, 

Charles  Shadwell. 

Averment :  That  the  plaintiff  did  all  things  necessar}',  and  all  things 
necessary  happened,  to  entitle  him  to  have  the  said  testator  psiv  to  him 
eighteen  of  the  said  j'earh*  sums  of  150/.  each  respectively  ;  and  that  the 
time  for  the  paj-ment  of  each  of  the  said  eighteen  yearh'  sums  elapsed 
after  he  married  the  said  Pollen  Nicholl,  and  in  the  lifetime  of  the  said 
testator ;  and  that  the  plaintiff's  annual  income  deiived  from  his  pro- 
fession of  a  chancery  barrister  never  amounted  to  six  hundred  guineas, 
which  he  was  alwa3's  ready  and  willing  to  admit  and  state  to  the  said 
testator ;  and  the  said  testator  paid  to  the  plaintiff  twelve  of  the  said 
eighteen  yearly  sums  which  first  became  payable,  and  part,  to  wit,  12/., 

1  Moore  v.  Bray,  1  Vin.  Ab.  310,  pi.  31  ;  Anon.,  Sheppard's  Action  on  the  case  (2d 
ed.)  1.55,  ace.     Westbie  v.  Cockayne,  1  Vin.  Ab.  312,  pi.  36,  contra. 


238  SHAD  WELL   V.    SHAD  WELL.  [CHAP.   I. 

of  the  thirteenth  ;  ^et  the  said  testator  made  default  in  paying  the  resi- 
due of  the  said  thirteenth  yearly-  sum,  which  residue  is  still  in  arrear 
and  unpaid,  and  in  paying  the  five  of  the  said  eighteen  3'early  sums 
which  last  became  payable,  and  the  said  five  sums  are  still  in  arrear 
md  unpaid. 

Fourth  plea  :  That  before  and  at  the  time  of  the  making  of  the  sup- 
posed agreement  and  promise  in  the  declaration  mentioned,  the  said 
marriage  had  been  and  was,  without  any  request  by  or  on  the  part  of 
the  testator  touching  the  said  intended  marriage,  but  at  the  request  of 
the  plaintiff,  intended  and  agreed  upon  between  the  plaintiff  and  the 
said  Pollen  Nicholl,  of  which  the  testator,  before  and  at  the  time  of 
making  the  supposed  agreement  and  promise,  also  had  notice  ;  and  the 
said  marriage  was,  after  the  making  of  the  supposed  agreement  and 
promise,  duly  had  and  solemnized  as  in  the  declaration  mentioned,  at 
the  request  of  the  plaintiff  and  without  the  request  of  the  testator. 
And  the  defendants  further  sa}'  that,  save  and  except  as  expressed  and 
contained  in  the  writing  set  forth  in  the  declaration,  there  never  was 
any  consideration  for  the  supposed  agreement  and  promise  in  the 
declaration  mentioned,  or  for  the  performance  thereof. 

Fifth  plea :  To  part  of  the  claim  of  the  plaintiff,  to  wit,  so  much 
thereof  as  accrued  due  in  and  after  the  year  1855,  the  defendants  say 
that,  although  the  supposed  agreement  and  promise  in  the  declaration 
mentioned  were  made  upon  the  tei-ms  then  agreed  on  by  the  plaintiff 
and  the  testator,  that  the  plaintiff  should  continue  in  practice  and 
carry  on  the  profession  of  such  chancery  barrister  as  aforesaid,  and 
should  not  abandon  the  same  ;  yet  that,  after  the  making  of  the  said 
agreement  and  promise,  and  before  the  accruing  of  the  sui)posed  cavises 
by  this  plea  pleaded  to  and  in  the  declaration  mentioned,  or  an}-  part 
thereof,  the  plaintiff  voluntaril}',  and  without  the  leave  or  license  of  the 
testator,  relinquished  and  gave  up  and  abandoned  the  practice  of  the 
said  profession  of  a  chancery  barrister,  which  before  and  at  the  time  of 
the  said  making  of  the  said  supposed  agreement  and  promise  he  had  so 
carried  on  as  aforesaid  ;  and  although  the  plaintiff  could  and  might, 
during  the  time  in  this  plea  and  in  the  declaration  mentioned,  have 
continued  to  practise  and  (iany  on  that  profession  as  aforesaid,  yet  the 
plaintiff,  after  such  abandonment  thereof,  never  was  ready  and  willing 
to  practise  the  same  as  aforesaid,  but  practised  only  as  a  revising  bar- 
rister, that  is  to  sa}-,  as  a  barrister  appointed  yearly  to  revise  the  Ust 
of  voters  for  the  year  for  the  county  of  ]SIiddlesex,  according  to  the 
provisions  of  the  statutes  in  that  behalf,  by  holding  open  courts  for 
such  revision  at  the  times  and  places  in  that  behalf  provided  by  the 
said  statutes. 

Second  replication  to  the  fourth  plea:  That  the  said  agreement 
declared  on  was  made  in  writing,  signed  by  the  said  testator,  and  was 
and  is  in  the  words,  letters,  and  figures  following,  and  in  none  other, 
that  is  to  say  (setting  out  the  letter  as  in  the  declaration  above). 
Averuietit :  That  the  jilaintiff  afterwards  married  the  said  Ellon  NichoV., 


SECT.   II.]  SHADWELL  V.   SHADWELL.  239 

relying  on  the  said  promise  of  the  said  testator,  which  at  the  time  of 
the  said  marriage  was  in  full  force,  not  in  any  way  vacated  or  revoked ; 
and  that  he  so  married  while  his  annual  income  derived  from  his  pro- 
fession of  a  chancery  barrister  did  not  amount,  and  was  not  by  him 
admitted  to  amount,  to  six  hundred  guineas. 

Second  replication  to  the  fifth  plea:  That  the  said  agreement  de- 
clared on  was  in  writing,  signed  by  the  said  testator,  and  was  and  is 
in  the  words,  letters,  and  figures  set  out  in  the  next  preceding  replica- 
tion, and  in  none  other;  and  that  the  terms  upon  which  it  is  in  the 
fifth  plea  alleged  that  the  said  agreement  and  promise  were  made, 
were  no  part  of  the  agreement  and  promise  declared  on,  and  the  per- 
formance of  them  by  the  plaintiff  was  not  a  condition  precedent  to 
the  plaintiff's  right  to  be  paid  the  said  annuity. 

Demurrers  to  the  replications  to  the  fourth  and  fifth  pleas.  Joinder 
in  demurrer. 

Bxdlar.,  in  support  of  the  demurrers. 

V.  Harcourt,  in  support  of  the  replications. 

Erle,  C.  J.,  now  delivered  the  judgment  of  himself  and  Keating,  J 
The  question  raised  by  the  demurrer  to  the  replication  to  the  fourth 
plea  is,  whether  there  was  a  consideration  to  supiv,rt  the  action  on  the 
promise  to  pay  an  annuity  of  150/.  pei  aninnn.  If  there  be  such  a 
consideration,  it  is  a  maiTiage ;  therefore  the  promise  is  withui  the 
Statute  of  f'rauds,  and  the  consideration  must  appear  in  the  writing 
containing  the  promise,  that  is,  in  the  letter  of  the  11th  of  August, 
1838,  and  in  the  suiTounding  circumstances  to  be  gathered  therefrom, 
together  with  the  averments  on  the  record.  The  circumstances  are, 
that  the  plaintiflT  had  made  an  engagement  to  many  Ellen  NichoU,  his 
uncle  promising  him  to  assist  him  at  starting,  b}'  which,  as  I  understand 
the  words,  he  meant  on  commencing  his  mamed  life.  Then  the  letter 
containing  the  promise  declared  on  is  said  to  specify  what  the  assistance 
would  be,  namely,  150/.  per  annum  during  the  uncle's  Ufe,  and  until 
the  plaintiff's  professional  income  should  be  acknowledged  b}-  him  to 
exceed  six  hundred  guineas  ;  and  a  further  averment,  that  the  plain- 
tiff, relying  upon  his  promise,  without  any  revocation  on  the  part  of 
the  uncle,  did  marry  EUen  iS'icholl.  Then,  do  these  facts  show  that  the 
promise  was  in  consideration  either  of  the  loss  to  be  sustained  b}'  the 
plaintiff,  or  the  benefit  to  be  derived  from  the  plaintiff  to  the  uncle,  at 
his,  the  uncle's,  request?  My  answer  is  in  the  affirmative.  First,  do 
these  facts  show  a  loss  sustained  by  the  plaintiff  at  the  nude's  request? 
When  I  answer  this  in  the  affirmative,  I  am  aware  that  a  man's  mar- 
riage with  the  woman  of  his  choice  is  in  one  sense  a  boon,  and  in  that 
sense  the  reverse  of  a  loss  ;  yet,  as  between  the  plaintiff  and  the  party 
promising  an  income  to  support  the  marriage,  it  ma}'  be  a  loss.  The 
plaintiff  may  have  made  the  most  material  changes  in  his  position,  and 
have  induced  the  object  of  his  affections  to  do  the  same,  and  have 
incurred  pecuniary  liabilities  resulting  in  embarrassment,  which  would 
be  in  every  sense  a  loss,  if  the  income  which  had  been  promised  shouW 


240  SHADWELL   V.   SHADWELL.  [CHAP.   I. 

be  withheld;  and  if  the  promise  was  made  in  order  to  induce  the 
parties  to  marry,  the  promise  so  made  would  be,  in  legal  eflfect,  a 
request  to  marry.  Secondly,  do  these  facts  show  a  benefit  derived 
from  the  plaintiff  to  the  uncle,  at  his  request?  In  answering  again  in 
the  affirmative,  I  am  at  liberty  to  consider  the  relation  in  which  the 
parties  stood,  and  the  interest  in  the  status  of  the  nephew  which  the 
uncle  declares.  The  marriage  primarily  affects  the  parties  thereto: 
but  in  the  second  degree  it  may  be  an  object  of  interest  with  a  near 
relative,  and  in  that  sense  a  benefit  to  him.  This  benefit  is  also 
derived  from  the  plaintiflT  at  the  uncle's  request,  if  the  promise  of  the 
annuit}'  was  intended  as  an  inducement  to  the  marriage ;  and  the 
averment  that  the  plaintiff,  relying  on  the  promise,  married,  is  au 
aveiTnent  that  the  promise  was  one  inducement  to  the  marriage.  This 
is  a  consideration  averred  in  the  declaration,  and  it  appears  to  me 
to  be  expressed  in  the  letter,  construed  with  the  surrounding  cir- 
cumstances. No  case  bearing  a  strong  analogy  to  the  present  was 
cited ;  but  the  importance  of  enforcing  promises  which  have  been 
made  to  induce  parties  to  marry  has  been  often  recognized,  and  the 
cases  of  Montefiori  v.  Monte fiori  and  Bold  v.  Hutchinson  are  exam- 
ples. I  do  not  feel  it  necessary  to  add  any  thing  about  the  numerous 
authorities  referred  to  in  the  learned  arguments  addressed  to  us, 
because  the  decision  turns  on  a  question  of  fact,  whether  the  con- 
sideration for  the  promise  is  proved  as  pleaded.  I  think  it  is,  and 
therefore  m}'  judgment  on  the  first  demurrer  is  for  the  plaintiff.  The 
second  demurrer  raises  the  question,  whether  the  plaintiff's  continuing 
at  the  bar  was  made  a  condition  precedent  to  the  right  to  the  annuit}'. 
I  think  not.  The  uncle  promises  to  continue  the  annuity  until  the 
professional  income  exceeds  the  sum  mentioned,  and  I  find  no  stipula- 
tion that  the  annuity  shall  cease  if  the  professional  diligence  ceases. 
My  judgment  on  this  demurrer  is  also  for  the  plaintiff;  and  I  should 
state  that  this  is  the  judgment  of  my  brother  Keating  and  myself,  my 
brother  Byles  differing  with  us. 

Byles,  J.  I  am  of  opinion  that  the  defendant  is  entitled  to  the 
judgment  of  the  court  on  the  demurrer  to  the  second  replication  to 
the  fourth  plea.  It  is  alleged  by  the  fourth  plea,  that  the  defendant's 
testator  never  requested  the  plaintiff  to  enter  into  the  engagement  to 
marry,  or  to  marr}',  and  that  there  never  was  an}'  consideration  for 
the  testator's  promise,  except  what  may  be  collected  from  the  letter 
itself  set  out  in  the  declaration.  The  inquiry,  therefore,  narrows  itsell' 
to  this  question  :  Does  the  letter  itself  disclose  any  consideration  for 
the  promise?  The  consideration  relied  on  by  the  plaintiff's  counsel 
being  the  subsequent  marriage  of  the  plaintiff,  I  think  the  letter  dis- 
closes no  consideration.  It  is  in  these  words  :  [His  Lordship  read  it.] 
It  is  by  no  means  clear  that  the  words  "  at  starting"  mean  "  on  mar- 
riage with  Ellen  NichoU,"  or  with  anj*  one  else.  The  more  natura. 
meaning  seems  to  me  to  be  "  at  starting  in  the  profession  ; "  for  it  will 
be  observed  that  these  words  are  used  by  the  testator  in  recitinof  a 


SECT.    II.]  SHADWELL    V.    SHADWELL.  241 

prior  promise,  made  when  the  tcstntor  lind  not  hoard  of  tlie  proposed 
marriage  with  Ellen  Nicholl.  oi-,  so  fur  as  appears,  heard  of  an}'  pro- 
posed marriage.  This  construction  is  fortitied  by  the  consideration, 
that  the  annuity  is  not  in  terms  made  to  begin  from  the  marriage, 
but,  as  it  should  seem,  from  the  date  of  the  letter.  Neither  is  it  in 
terms  made  defeasible  if  P^Uen  NichoU  should  die  before  marriage. 
But  even  on  tlie  assumption  that  the  words  ''at  startin^r"  mean  "on 
inarriage,"  I  still  think  that  no  consideration  appears  siifBcient  to  sus- 
tain the  promise.  The  promise  is  one  which  by  law  must  be  in  writ- 
ing ;  and  the  fourth  plea  shows  that  no  consideration  or  request,  deliora 
the  letter,  existed,  and  therefore  that  no  such  consideration  or  request 
can  be  alluded  to  by  the  letter.  Marriage  of  the  plaintiff  at  the  tes- 
tator's express  request  would  be,  no  doubt,  an  ample  consideration  ; 
but  marriage  of  the  plaintitf  without  the  testator's  request  is  no  con- 
sideration to  the  testator.  It  is  true  that  mamage  is,  or  may  be,  a 
detriment  to  the  plaintiff,  but  detriment  to  the  plaintiff  is  not  enough, 
unless  it  either  be  a  benefit  to  the  testator,  or  be  treated  by  the  testator 
as  such,  by  having  been  suffered  at  his  request.  Suppose  a  defendant 
to  promise  a  plaintiff,  "  I  will  give  3'ou  500/.  if  you  break  your  leg ; " 
would  that  detriment  to  the  plaintiff,  should  it  happen,  be  any  consid- 
eration? If  it  be  said  that  such  an  accident  is  an  involuntary  mischief, 
would  it  have  been  a  binding  promise,  if  the  testator  had  said,  "  I  will 
give  you  100/.  a  year  while  you  continue  in  your  present  chambers?" 
I  conceive  that  the  promise  would  not  be  binding  for  want  of  a  pre 
vious  request  by  the  testator.  Now,  the  testator  in  the  case  before  the 
court  derived,  so  far  as  appears,  no  personal  benefit  from  the  marriage. 
The  question,  therefore,  is  still  further  narrowed  to  this  point :  Was 
the  marriage  at  the  testator's  request?  Express  request  there  was 
none.  Can  any  request  be  implied?  The  onl}'  words  from  which  it 
can  be  contended  that  it  is  to  be  imphed  are  the  words,  "  I  am  glad  to 
hear  of  your  intended  marriage  with  Ellen  Nicholl."  But  it  appears 
from  the  fourth  plea,  that  that  marriage  had  already  been  agreed  on, 
and  that  the  testator  knew  it.  These  words,  therefore,  seem  to  me  to 
import  no  more  than  the  satisfaction  of  the  testator  at  the  engagement 
as  an  accompUshed  fact.  No  request  can,  as  it  seems  to  me,  be  inferred 
fi"om  them.  And  further,  how  does  it  appear  that  the  testator's  implied 
request,  if  it  could  be  impUed,  or  his  promise,  if  that  promise  alone 
would  sutllce,  or  both  together,  were  intended  to  cause  the  marriage, 
or  did  cause  it,  so  that  the  marriage  can  be  said  to  have  taken  place  at 
the  testator's  request,  or,  in  other  words,  in  consequence  of  that 
request?  It  seems  to  me,  not  only  that  this  does  not  appear,  but  that 
the  contrary'  appears  ;  for  the  plaintiff,  before  the  letter,  had  already 
bound  himself  to  marry,  by  phicing  himself  not  only  under  a  moral, 
but  under  a  legal  obhgation  to  many,  and  the  testator  knew  it.  The 
well-known  cases  which  have  bi.'en  citod  at  the  bar  in  support  of  the 
position,  that  a  promise,  based  on  the  consideration  of  doing  tlial  wlii(!h 
a  man  is  already  bound  to  do.  is  invalid,  apply  to  this  case  ;  and  it  is 

VOL.    I.  16 


242  SCOTSON   V.    PEGG.  [CiTAP.   T. 

not  necessar}',  in  order  to  invalidate  the  consideration,  thiit  the  plaiji- 
tiff's  prior  obligation  to  afford  that  consideration  should  have  been  ar. 
obligation  to  the  defendant.  It  may  have  been  an  obligation  to  a  tliiid 
person :  see  Herring  v.  Dorell  and  Atkinson  v.  Settree.  The  reason 
why  the  doing  what  a  man  is  alread\'  bound  to  do  is  no  consideration, 
is  not  only  because  such  a  consideration  is  in  judgment  of  law  of  no 
value,  but  because  a  man  v.an  hardh'  be  allowed  to  say  that  the  prior 
legal  obligation  was  not  his  determining  motive.  But,  whether  he  can 
be  allowed  to  say  so  or  not,  the  plaintiff  does  not  sa}'  so  here.  He 
does,  indeed,  make  an  attempt  to  meet  this  difficulty  b}-  alleging,  in 
the  replication  to  the  fourth  plea,  that  he  married  relying  on  the  tes- 
tator's promise;  but  he  shrinks  from  alleging  that,  though  he  had 
promised  to  marry  before  the  testator's  promise  to  him,  nevertheless 
he  would  have  broken  his  engagement,  and  would  not  have  married 
without  the  testator's  promise.  A  man  may  rely  on  encouragements  to 
the  performance  of  his  duty,  who  yet  is  prepared  to  do  his  duty  with- 
out those  encouragements.  At  the  utmost,  the  allegation  that  he  relied 
on  the  testator's  promise  seems  to  me  to  import  no  more  than  that  he 
believed  the  testator  would  be  as  good  as  his  word.  It  ai)pears  to  me, 
for  these  reasons,  that  this  letter  is  no  more  than  a  letter  of  kindness, 
creating  no  legal  obligation.  In  their  judgment  on  the  other  portions 
of  the  record,  I  agree  with  the  rest  of  the  Court. 

Judgment  for  the  plaintiff? 


SCOTSON  AND  Others  v.  PEGG. 
In  the  Exchequer,  January  28,  1861. 

{Reported  in  6  Ilurlstone  Sf  Norman,  296.] 

Declaration.  For  that  in  consideration  that  the  plaintiffs,  at  the 
request  of  the  defendant,  would  deliver  to  the  defendant  a  certain 
cargo  of  coals,  then  on  board  a  certain  ship  of  the  plaintiffs,  the  defend- 
ant to  take  the  same  from  and  out  of  the  said  ship,  the  defendant 
promised  the  plaintiffs  to  unload  and  discharge  the  same  at  the  rate  of 
forty-nine  tons  of  the  said  coals  during  each  working  day,  after  the 
said  ship  was  ready  to  unload  and  discharge  the  same.  And  although 
the  plaintiffs  did  afterwards  dehver  the  said  cargo  to  the  defendant, 
and  were  always  ready  and  willing  to  suffer  and  permit  him  to  take 
the  same  from  and  out  of  the  said  ship  as  aforesaid,  and  although  all 
things  were  done,  and  conditions  precedent  to  be  performed  by  the 

1  Chichester  v.  Cobb,  14  L.  T.  Rep.  433  ;  Skeete  v.  Silberberg,  11  Times  L.  R.  491, 
ace.  Compare  Wright  y.  Wright,  114  la.  748;  Boord  i-.  Boord,  Pelham  (So.  Aust.) 
58,  64 ;  Usher's  Ex.  v.  Flood,  83  Ky.  552 ;  Caborne  i'.  Godfrey,  3  Desaus.  514. 


C^/^<-^ 


^-v^^^«.^^ 


SECT,   n.]  SCOTSOIT   V.   PEGG.  243 

plaintiffs  were  performed  by  the  plaintiffs,  to  entitle  the  plaintiffs  to  a 
performance  c  f  the  said  promise  by  the  defendant,  —  yet  the  defendant 
did  not  unload  and  discharge  the  said  cargo  at  the  rate  aforesaid  during 
each  working  day  after  the  said  ship  was  ready  to  unload  and  discharge 
the  same,  and  the  defendant  wholly  neglected  and  refused  so  to  do  for 
five  clays  longer  and  more  than  he  ought  to  have  done  according 
to  his  said  promise  ;  and  the  plaintiffs  were  put  to  expense  in  and 
about  the  maintaining  and  keeping  the  master  and  crew  of  the  said 
ship,  &c. 

Plea :  That  before  the  making  of  the  said  promise  the  plaintiffs,  by 
another  contract  made  by  and  between  the  plaintiffs  and  certain  other 
persons,  agreed  with  the  said  certain  other  persons,  for  certain  freight 
therefore  payable  by  the  said  other  persons  to  the  plaintiffs,  to  carry 
the  said  coals  on  a  certain  voyage  in  the  said  ship,  and  to  deliver  the 
said  coals  to  the  order  of  the  said  other  persons,  which  contract  was  in 
ftill  forctf  thence  until  and  at  the  time  of  the  making  of  the  said  prom- 
ise and  the  delivery  of  said  coals.  And  the  defendant  says  that  before 
the  making  of  the  said  promise,  and  after  the  making  of  the  said  other 
eonti-act,  and  while  the  last-mentioned  contract  was  in  force,  he  bought 
the  coals  of  the  said  other  persons,  who  thereupon  ordered  the  plaintiffs 
to  deliver  the  same  to  the  defendant  under  and  according  to  the  said 
contract  with  the  said  other  persons,  of  which  the  plaintiffs,  before  the 
making  of  the  said  promise,  had  notice.  And  the  defendant  says  that 
the  said  order  was  in  full  force  until  and  at  the  time  of  the  making  of 
the  said  promise,  and  thence  until  and  at  the  delivery  of  the  said  coals, 
of  which  the  plaintiffs  alwa3's  had  notice.  And  the  defendant  says  the 
then  further  delivery  to  the  defendant  of  the  said  coals  on  the  terms  in 
the  declaration  mentioned,  which  was  the  consideration  for  the  said 
promise,  was  the  deliver^'  of  the  said  coals  to  the  order  of  the  said  othei 
persons,  which  the  plaintiffs  had  by  the  said  contract  with  such  other 
persons  so  agreed  to  make  as  aforesaid,  and  which  before  and  at  the 
time  of  the  making  of  the  said  promise,  until  and  at  the  time  of  the  said 
deliver}',  the  plaintiffs  were,  b}',  under,  and  according  to  the  said  con- 
tract with  the  said  other  persons,  bound  to  make  as  aforesaid.  And 
the  defendant  says  that  there  never  was  any  consideration  for  his  said 
promise  other  than  the  doing  of  that  which  b}'  the  said  contract  with 
the  said  other  persons,  they,  the  plaintiffs,  before  and  at  the  time  of  the 
making  of  the  said  promise,  and  thence  until  the  plaintiffs  did  it,  were 
bound  to  do. 

Demurrer  and  joinder. 

Doicdeswell,  in  support  of  the  demurrer. 

The  Court  then  called  on 

C.  Pollock^  to  support  the  plea.  There  is  no  consideration  to  sup- 
port the  promise.  The  plea  shows  that  the  consideration  alleged  in 
the  declaration  is  the  doing  that  which  the  plaintiffs,  by  their  contract 
with  other  persons,  were  bound  to  do.     The  charter-part}'  only  speci* 


244  SCOTSON    V.   PEGG.  [CHAP.   I. 

fies  the  time  and  mode  in  which  the  cargo  is  to  be  discharged,  aa 
between  the  charterer  and  shipowner.  [Martin,  B.  You  must  estab- 
lish this,  that,  if  a  person  says  to  another,  "  The  goods  which  1  have  in 
my  ship  are  yours  ;  but  I  will  not  deliver  them  unless  you  pay  my 
lien  for  freight,"  which  the  latter  agrees  to  do,  the  deliver^'  of  the  goods 
is  no  consideration  to  support  the  promise  to  paj'.]  The  cargo  is  the 
property  of  the  defendant,  and  the  agreement  to  deliver  to  him  that 
which  he  was  entitled  to  have  was  a  nudum  pactum.  In  Black.  Com. 
vol.  ii.  p.  450,  it  is  said :  "  If  a  man  bu3-8  his  own  goods  in  a  fair  or 
market,  the  contract  of  sale  shall  not  bind  him,  so  that  he  shall  render 
the  price,  unless  the  property  had  been  previously  altered  by  a  former 
sale."  [Wilde,  B.  That  is  the  case  of  a  purchase  of  goods,  the  prop- 
erty in  them  being  already  in  the  purchaser ;  but  here  the  plaintiflfe 
will  not  deliver  the  cargo  to  the  defendant,  whereupon  the  defendant 
says,  "  If  ^'ou  will  deliver  it  to  me,  I  will  discharge  it  in  a  certain  man- 
ner."] The  plaintiffs  were  under  a  prior  legal  obligation  to  deliver  the 
cargo,  and  therefore  the  promise  to  the  defendant  to  do  the  same  thing 
was  void.  Where  a  plaintiff  discharged  one  of  two  joint  debtors,  it 
was  held  that  a  promise  by  a  third  person  to  pay  the  debt,  in  order  to 
obtain  the  discliarge  of  the  other  debtor,  was  void  for  want  of  consid- 
eration. Herring  v.  Dorell.  So,  if  A.  be  illegally  arrested  by  B.  for  a 
debt,  a  promise  b}'  C.  to  pay  the  debt  claimed  b}'  B.  in  consideration 
of  B.'s  releasing  A.  out  of  custody,  is  void.  Atkinson  v.  Settree. 
[Wilde,  B.  In  those  cases  there  was  a  legal  right  to  the  performance 
of  the  very  act  which  was  bargained  for  :  it  is  not  so  here.  Martin,  B. 
Suppose  a  man  promised  to  marry  on  a  certain  day,  and  before  that 
day  arrived  he  refused,  on  the  ground  that  his  income  was  not  suffi- 
cient, whereupon  the  father  of  the  intended  wife  said  to  him :  "If  you 
will  marry  m}'  daughter,  I  will'  allow  you  1000^.  a  year."  Could  not 
the  contract  be  enforced  ?]  There  would  be  no  consideration  for  such 
a  promise,  the  party  being  already  under  an  obligation  to  marry.  A 
promise  by  a  captain  to  pay  his  sailors  increased  wages  for  performing 
their  duty  during  a  storm  is  void  for  want  of  consideration.  [Mar- 
tin, B.  That  proceeds  on  the  ground  of  public  policy.  Wilde,  B. 
It  often  happens  that  when  goods  arrive  in  a  ship,  and  there  is  a  lien 
upon  them,  a  merchant  who  wants  to  get  possession  of  the  goods 
promises  to  pay  the  lien  if  the  master  will  deliver  them  to  him.  A 
man  maj'  be  bound  by  his  contract  to  do  a  particular  thing,  but  while 
it  is  doubtful  whether  or  no  he  will  do  it,  if  a  third  person  steps  in  and 
says,  "  I  will  pay  you,  if  you  will  do  it,"  the  performance  is  a  vaUd 
consideration  for  the  payment.  Martin,  B.  If  a  builder  was  under  a 
contract  to  finish  a  house  on  a  particular  day,  and  the  owner  promised 
to  pay  him  a  sum  of  money  if  he  would  do  it,  what  is  to  prevent  the 
builder  from  recovering  the  money  ?]  As  the  plaintiffs  would  be  doing 
a  wrong  by  not  fulfilling  their  contract,  it  must  be  presumed  that  the 
prior  legal  obligation,  and  not  the  subsequent  promise,  was  the  motive 
for  their  delivery  of  the  cargo. 


SECT.    IL]  SCOTSON   V.   PEGG.  245 

Maktin,  B.  I  am  of  opinion  that  the  plea  is  bad,  both  on  principle 
and  in  law.  It  is  bad  in  law  because  the  ordinary  rule  is,  that  any  act 
done  whereby  the  contracting  party  receives  a  benefit  is  a  good  con 
sideration  for  a  promise  b}'  him.  Here  the  benefit  is  the  delivery  of  the 
coals  to  the  defendant.  It  is  consistent  with  the  declaration  that  there 
may  have  been  some  dispute  as  to  the  defendant's  right  to  have  the 
coals,  or  it  ma}'  be  that  the  plaintiffs  detained  them  for  demun-age  ;  in 
either  case  there  would  be  good  consideration  that  the  plaintiffs,  who 
were  in  possession  of  the  coals,  would  allow  the  defendant  to  take  them 
out  of  the  ship.  Then  is  it  any  answer  that  the  plaintiffs  had  entered 
into  a  prior  contract  with  other  persons  to  deliver  the  coals  to  their 
order  upon  the  same  terms,  and  that  the  defendant  was  a  stranger  to 
that  contract?  In  m}'  opinion  it  is  not.  We  must  deal  with  this  case 
as  if  no  prior  contract  had  been  entered  into.  Suppose  the  plaintiffs  had 
no  chance  of  getting  their  money  from  the  other  persons,  who  might 
perhaps  have  become  bankrupt.  The  defendant  gets  a  benefit  by  the 
delivery  of  the  coals  to  him,  and  it  is  immaterial  that  the  plaintiffs  had 
previously  contracted  with  third  parties  to  deliver  to  their  order. 

Wilde,  B.  I  am  also  of  opinion  that  the  plaintiffs  are  entitled  to 
judgment.  The  plaintiffs  sa}^  that  in  consideration  that  they  would 
deliver  to  the  defendant  a  cargo  of  coals  from  their  ship,  the  defendant 
promised  to  discharge  the  cargo  in  a  certain  way.  The  defendant  in 
answer  says,  "You  made  a  previous  contract  with  other  persons  that 
they  should  discharge  the  cargo  in  the  same  way,  and  therefore 
there  is  no  consideration  for  my  promise."  But  why  is  there  no  con- 
sideration? It  is  said,  because  the  plaintiffs,  in  delivering  the  coals, 
are  only  performing  that  wliicli  tliey  were  already  bound  to  do.  But 
to  sa}'  that  there  is  no  consideration  is  to  say  that  it  is  not  possible  for 
one  man  to  h.-ivc  an  interest  in  the  nerformance  of  a  contract  made  by 
another.  But  if  a  person  chooses  to  promise  to  pa}'  a  sum  of  money 
in  order  to  induce  another  to  perform  that  which  he  has  already  con- 
tracted with  a  tliird  person  to  do,  1  confess  I  cannot  see  wh}'  such  a 
promise  should  not  be  binding.  Here  the  defendant,  who  was  a 
stranger  to  the  original  contract,  induced  the  plaintiffs  to  part  with  the 
cargo,  which  they  might  not  otherwise  have  been  wilUng  to  do,  and 
the  deliver}'  of  it  to  tlie  defendant  was  a  benefit  to  him.  I  accede  to 
the  proposition  that,  if  a  person  contracts  with  auoiher  to  do  a  certain 
thing,  he  cannot  make  the  performance  of  it  a  consideration  for  a  new 
promise  to  the  same  individual.  But  there  is  no  authority  for  the 
proposition  that  where  there  has  been  a  promise  to  one  person  to  do 
a  certain  thing,  it  is  not  possible  to  make  a  valid  promise  to  another  to 
do  the  same  thing.  Therefore,  deciding  this  matter  on  principle,  it  ia 
plain  to  my  mind  that  the  delivery  of  the  coals  to  the  defendant  was 
a  good  consideration  for  his  promise,  although  the  plaintiffs  had  made 
&  previous  contract  to  deliver  them  to  the  order  of  other  persons. 

Judgment  for  the  plaintiff's,^ 

1  But  see  contra,  Jones  v.  Waite,  5  Biug.  N.  C.  o4l,  ,".'^1,  o5G,  338-359. 


216/)  dy  ABBOTT  V.   DOANE.  [CHAP.   I. 


-"fe-*- 


C^  LEWIS  F.   F.  ABBOTT  v.   VALENTINE   DOANE,  Jr. 

Supreme  Judicial  Court  of  Massachusetts,  March  14- 
April  6,   1895. 

l^Reported  in  163  Massachusetts,  433.] 

Allen,  J.  The  plaintiff  had  given  his  accommodation  note  to 
a  corporation,  which  had  had  it  discounted  at  a  bank,  and  left  it 
unpaid  at  its  maturity.  The  defendant,  being  a  stockholder,  director, 
and  creditor  of  the  corporation,  wishing  to  have  the  note  paid  at  once 
for  his  own  advantage,  entered  into  an  agreement  with  the  plaintiff 
whereby  he  was  to  give  to  the  plaintiff  his  own  note  for  the  amount, 
and  the  plaintiff  was  to  furnish  money  to  enable  the  defendant  to 
take  up  the  note  at  the  bank.  This  agreement  was  carried  out,  and 
the  defendant  now  contends  that  his  note  to  the  plaintiff  was  without 
consideration,  because  the  plaintiff  was  already  bound  in  law  to  take 
up  the  note  at  the  bank. 

It  is  possible  that,  for  one  reason  or  another,  both  the  bank  and 
the  plaintiff  may  have  been  willing  to  wait  a  while,  but  that  the  de- 
fendant's interests  were  imperilled  by  a  delay,  and  indeed  required 
that  the  note  should  be  paid  at  once,  and  that  the  corporation,  whose 
duty  it  was  primarily  to  pay  it,  was  without  present  means  to  do  so. 
Since  the  defendant  was  sane,  sui  juris,  was  not  imposed  upon  nor 
under  duress,  knew  what  he  was  about,  and  probably  acted  for  his 
own  advantage,  it  would  certainly  be  unfortunate  if  the  rules  of  law 
required  us  to  hold  his  note  invalid  for  want  of  a  sufficient  consid- 
eration, when  he  has  had  all  the  benefit  that  he  expected  to  get 
from  it. 

In  this  Commonwealth  it  was  long  ago  decided  that,  even  between 
the  original  parties  to  a  building  contract,  if  after  having  done  a 
part  of  the  work  the  builder  refused  to  proceed,  but  afterwards,  on 
being  promised  more  pay  by  the  owner,  went  on  and  finished  the 
building,  he  might  recover  the  whole  sum  so  promised.  Munroe  v. 
Perkins,  9  Pick.  298.  See  also  Holmes  v.  Doane,  9  Cush.  135;  Peck. 
V.  Requa,  13  Gray,  407;  Rogers  v.  Rogers,  139  Mass.  440;  Hastings 
V.  Lovejoy,  140  Mass.  261,  265;  Thomas  v.  Barnes,  156  Mass.  581. 
In  other  States  there  is  a  difference  of  judicial  opinion,  but  the  fol- 
lowing cases  sanction  a  similar  doctrine.  Lattimore  v.  Harsen,  14 
Johns,  330 ;  Stewart  v.  Keteltas,  36  N.  Y.  388 ;  Lawrence  v.  Davey, 
28  Vt.  264;  Osborne  v.  O'Reilly,  15  Stew.  467;  Goebel  v.  Linn,  47 
Mich.  489;  Cooke  v.  Murphy,  70  111.  96.  In  England  and  in  others 
of  the  United  States  a  different  rule  prevails. 

But  when  one  who  is  unwilling  or  hesitating  to  go  on  and  perform 
a  contract  which  proves  a  hard  one  for  him,  is  requested  to  do  so  by 


SECT,   n.]  ABBOTT   V.   DOANE.  247 

a  third  person  who  is  interested  in  such  performance,  though  having 
no  legal  way  of  compelling  it,  or  of  recovering  damages  for  a  breach, 
and  who  accordingly  makes  an  independent  promise  to  pay  a  sum  of 
money  for  such  performance,  the  reasons  for  holding  him  bound  to 
such  paj^meut  are  stronger  than  where  an  additional  sum  is  promised 
by  the  party  to  the  original  contract. 

Take  an  illustration.  A.  enter8_into  a  cimtract  with  B.  to  do 
something.  It  may  be  to  pay  money,  to  render  service,  or  to^spM. 
land  or  goods  for  a  price.  The  contract  may  he  not  especiall}-  for 
the  benefit  of  B.,  but  rather  for  the  benefit  of  otj>ers_i_a.a^-a.  g.,  to- 
erect  a  monument,  an  archway,  a  memorial  of  some  kind,  or  to  paint 
a  picture  to  be  placed  where  ii  can  be  seen/bythe  public.  The  con- 
sKTeration  movingtroin  B.  may  be  executed  or  executory ;  it  may  be 
money,  or  anything  else  in  law  deemed  valuable;  it  may  be  of  slight, 
value  as  compared  ^vllh  tvhal  A.  has  contracted  to  d67    Now  A.  is 

Iporglly  hnnnd    only^to   B.^anrl__if_hft    hrpaka    his  nnntrnpt;   nnhorly  hnt 

'BTcan  recover~^amages,  and  those  damages  may  be  slight.  They 
niay  even  be^lreadyTiquidated  at  a  small  sum  by  the  terms  of  the 
contract  itself.  Though  A.  is  legally  bound,  the  motive  to  perform 
\he  contract  may  be  slight.  If  after  A.  has  refused  to  go  on  with 
bis  undertaking,  or  while  he  is  hesitating  whether  to  perform  it  or 
submit  to  such  damages  as  B.  may  be  entitled  to  recover,  other  per- 
sons interested  in  having  the  contract  performed  intervene,  and  enter 
into  a  new  agreement  with  A.,  by  which  A.  agrees  to  do  that  which 
he  was  already  bound  by  his  contract  with  B.  to  do,  and  they  agree 
jointly  or  severally  to  pay  him  a  certain  sum  of  money,  and  give 
their  note  or  notes  therefor,  and  A.  accordingly  does  what  he  had 
before  agreed  to  do,  but  what  perhaps  he  might  not  otherwise  have 
done,  no  good  reason  is  perceived  why  they  should  not  be  held  to 
fulfil  their  promise.  They  have  got  what  they  bargained  for,  and  A. 
has  done  what  otherwise  he  might  not  have  done,  and  what  they  could 
not  have  compelled  him  to  do. 

This  has  been  so  held  in  England,  and  the  view  is  supported  by 
English  text-writers,  though  not  always  for  precisely  the  same  rea,- 
sons.  Scotson  v.  Pegg,  6  H.  &  N.  295;  Shadwell  v.  Shadwell,  30 
L.  J.  (n.  s.)  C.  p.  145;  Pollock,  Con.  (Gth  ed.)  175-177;  Anson, 
Con.  (4th  ed.)  87,  88;  Leake,  Con.  (3d  ed.)  540.  In  this  country 
the  courts  of  several  States  have  taken  the  opposite  view,  though  in 
some  instances  the  cases  referred  to  as  so  holding,  when  examined, 
do  not  necessarily  lead  to  that  result.  These  cases  are  collected  in 
the  defendant's  brief,  and  in  Williston's  discussion  of  the  subject 
in  8  Harv.  Law  Rev.  27. 

Without  dwelling  further  on  the  reasons  for  the  doctrine,  it  seems 
to  us  better  to  hold,  as  a  general  rule,  that  if  A.  has  refused  or  hesi- 
tated  to  perform  an  agreement  with  B.,  and  iTT-equested  to  do  so  by 
TT,  w^ojwjjj_denje  a  henp.^t^rom  such  performance,  and  who  prom- 
ises to  pay  him  a  certain  sum  therefor,  and  A.  thereupon  undertakes 


248  SCHULER   V.  MYTON.  [CHAP.   T. 

to  do  it,_tb,e.performaDce  by  A.  of  his  agreement  in  consequence  of 
_&acb  request  and  ^omise  by  G.  ia_a  gpod  considerationjto_auppQrt 
's  promise. 

Exceptions  overruled,^ 


H.    B.   SCHULER  v.   S.   H.   MYTON  et.  al. 
Kansas  Supreme  Court,  January  Term,   1892. 

[Reported  in  8  Kansas,  282.] 

Johnston,  J.  This  action  was  brought  by  S.  H^Myton  and  A.  J. 
Thompson  to  recover  from  H.  B.  Schuler  a  aubscript.ion  of"~fMDJ 
alleged  to  have  been  madfi_byJiim_to  reimburse  Myton  and  Thomp- 
son  for  money  guaranteed  and  paidByT;hem~tO  secure  the  location 
of  a  CDnege-at^VinfielcU^  In^Eh?~FaTiy  part  of  1885,  the  southwestern 
Kansas  conference  of  the  Methodist  Episcopal  church  determined  to 
locate,  build,  and  maintain  a  college  under  the  auspices  and  protec- 
tion of  that  denomination,  for  the  education  of  the  youth  of  both 
sexes,  and  proposed  to  locate  the  college  at  some  city  in  southwestern 
Kansas  whose  citizens  would  agree  by  donations  of  land  and  money 
to  contribute  to  the  securing  of  suitable  grounds  for  the  college,  and 
to  the  expense  of  erecting  the  same  upon  such  grounds.  The  com- 
mittee of  the  conference  to  whom  was  confided  the  duty  of  determin- 
ing the  location  visited  several  of  the  cities,  and  determined  that 
Wintield  was  a  desirable  place  at  which  to  locate  the  college,  and 
invited  the  citizens  to  make  known  to  the  committee  what  assistance 
they  would  give  to  secure  the  location  of  the  college  at  Winfield. 
Two  sites  were  proposed,  —  one  in  the  western  part  of  Winfield,  and 
the  other  in  the  northeastern  portion  of  the  city,  —  and  a  contest 
arose  between  the  parties  interested  in  the  real  estate  surrounding 
each  site  to  secure  the  location.  In  the  northeast  part  of  the  city 
was  a  tract  of  land  known  as  the  Highland  Park  addition,  which 
was  owned  by  H.  B.  Schuler,  S.  H.  Myton,  and  six  other  persons. 
These  parties  were  anxious  to  secure  the  location  upon  or  near 
their  land,  and  proposed  to  contribute  land  and  money  for  that  purpose. 
Other  parties  purchased  and  platted  the  southeast  quarter  of  section  22, 
township  32,  range  4,  which  adjoined  the  Highland  Park  addition,  and 
was  known  as  the  "Dr.  W.  R.  Davis  land,"  and  proposed  to  aid  in 
locating  the  college.  A.  J.  Thompson,  one  of  the  defendants  in  error, 
also  owned  land  in  that  vicinity,  and  was  interested  in  having  the  college 

1  Champlain  Co.  v.  O'Brien,  117  Fed.  Rep.  271  ;  Humes  y.  Decatur  Co.,  98  Ala. 
461,  473;  Hirsch  v.  Chicago  Carpet  Co.,  82  III.  App.  2.34;  Donnelly  v.  Newbold,  94 
Md.  220  ;  Day  v.  Gardner,  42  N.  J.  Eq.  199,  203  ;  Bradley  v.  Glenm.ary  Co.,  53  At. 
Rep.  49  (N.  J.  Eq.),  ace.  See  also  Green  v.  Kelley,  64  Vt.  309,  and  articles  by  Pro- 
fessor Ames,  12  Harv.  L.  Rev.  515  ;  13  ibid.  29. 


SECT.   II.]  SCHULEE,   V.   MYTON.  249 

located  northeast  of  the  cit}'.  The  parties  interested  in  this  location 
held  several  meetings  in  order  to  determine  the  quantity  of  land  and  the 
amount  of  mone}'  which  should  be  offered  to  the  conference  committee. 
The  Highland  Park  Company,  of  which  Myton  and  Schuler  were  mem- 
bers, proposed  to  give  20  acres  of  land  and  $2,800  in  money  toward 
securing  the  college.  A  definite  proposition  to  the  committee  was  re- 
quired, and  A.  J.  Thompson  and  S.  H.  Myton  made  a  written  prop- 
osition, as  follows  :  — 

WiNFiELD,  Kas.,  May  25,  1885. 

We  the  undersigned,  citizens  of  the  city  of  Winfield,  agree  that  we 
will  pay  to  the  college  of  the  Southwestern  Kansas  Conference,  if  the 
same  shall  be  located  east  of  the  cit}-  of  Winfield,  in  Cowle}'  County, 
Kansas,  and  on  either  the  Highland  Park  addition  to  the  cit}'  of  Win- 
field in  said  count}',  or  on  the  southeast  quarter  of  section  22,  township 
32,  range  4,  in  said  county,  the  sum  of  $10,000  in  mone}-,  and  that  we 
will  procure  and  give  to  said  college  a  good  and  sufficient  deed  of  gen- 
eral warrant}'  to  20  acres  of  land  in  said  Highland  Park  addition,  in  a 
solid  form  and  acceptable  to  the  committee  of  said  college  whose  busi- 
ness it  is  to  locate  said  college. 

The  above  proposition  is  made  in  consideration  of  the  location  of 
said  college  at  the  point  above  mentioned,  and  the  benefit  we  derive 
thereby  with  this  community  in  general. 

Witness  our  hands,  the  day  and  year  first  above  written. 

A.  J.  Thompson. 
S.  H.  Myton. 

In  order  to  enable  Thompson  and  Myton  to  carry  out  their  proposi- 
tion, the  owners  of  the  Highland  Park  addition  made  the  following 
written  subscription  :  — 

"  We  the  undersigned  agreetojjav  SJEL  Mvton  and  A.  J.  Thompson 
the  sums  set~opposite  our  respective  names  when  the  M.  E.  collegers — 
permaiienn\noga  the  southwest  quarter  of  the  tract  of  land  knowo- 

as  the  Dr.  W.  R.  Davis  land. 

"^^  This  subscription  is  made  to  enable  said  Myton  and  Thompson  to 
make  good  their  guarantee  to  $10,000  to  said  institution  ;  payments  to 
be  made  at  such  times  and  in  such  proportion  of  each  subscription  as 
will  equal  the  one  third  thereon,  as  follows  :  one  third  when  the  founda- 
tion of  said  college  building  is  completed,  one  third  when  the  walls  of 
the  first  story  of  said  building  are  completed,  and  one  third  when  the 
said  building  is  completed  and  ready  for  occupanc}-.  H.  D.  Gans,  $250  ; 
Wm.  Newton,  $350  ;  H.  B.  Schuler,  $500  ;  W.  G.  Graham,  $500  ;  A. 
B.  Graham,  $350;  J.  R.  Clark,  $100;  E.  S.  Bedillion,  $50;  B.  P. 
Wood,  $100." 

The  conference  determined  to  locate  the  college  at  Winfield,  but  upon 
the  northwest  quarter  of  the  Davis  tract  of  land.  This  location  met  the 
conditions  of  the  proposal  made  by  Thompson  and  Myton,  as  their  sub- 
scription permitted  a  location  on  either  the  Higliland  Park  addition  or 
upon  any  part  of  the  Davis  tract ;  but  the  subscription  of  Schuler  and 


250  SCHULER   V.   MYTON.  [CHAP.   T. 

others,  for  some  reason  which  is  not  fully  explained,  dia  not  correspond 
with  that  of  Thompson  and  My  ton,  but  was  made  upon  the  exprebs 
condition  tliat  the  college  should  be  located  on  the  southwest  quarter  of 
that  tract.  There  is  considerable  in  the  record  whicli  tends  to  show 
that  the  intention  of  all  the  parties  interested  must  have  been  to  muke 
the  subscriptions  on  exactly  similar  terms,  and  that  the  second  subsci  ip- 
tion  was  made  to  reimburse  Thompson  and  Myton  for  the  obligation 
which  tliey  had  assumed.  The  college  was  built  in  accordance  with  the 
proposition  of  Tiionipson  and  Myton,  and  tlie}'  have  paid  the  full 
amount  of  their  subscription.  All  of  the  subscribers  who  joined  with 
Schuler  in  the  undertaking  to  reimburse  Thompson  and  Myton  have 
paid  their  subscriptions,  and  Schuler  alone  refuses.  He  claims  that  his 
subscription  was  reduced  to  writing,  and  dofinitelj'  provides  that  the 
college  shall  be  located  on  a  certain  40  acres  of  land,  and  tliat,  as  it  has 
been  located  elsewhere,  tliere  is  no  liability  which  can  be  enforced 
against  him.  Upon  a  trial  had  with  a  jury,  a  general  verdict  was  re- 
turned against  Schuler  for  the  amount  of  his  subscription,  and  with  it 
answers  to  special  questions  submitted  were  made. 

Schuler  insists  that  he  is  not  liable  upon  his  subscription,  and  while 
we  think  there  is  a  strong  moral  obligation  resting  upon  him  to  con- 
tribute toward  the  donation,  according  to  the  understanding  of  all  the 
parties,  we  are  reluctantly'  compelled  to  sustain  his  claim,  on  tlie  record 
as  it  now  stands.  At  the  numerous  preliminary  meetings  held,  the  dis- 
cussion related  to  securing  the  location  of  the  college  in  the  northeast 
part  of  the  city,  and  there  was  apparently  no  contention  as  to  the  par- 
ticular spot  in  that  portion  of  the  city  on  which  it  should  be  built.  All 
the  pai'ties  interested  appeared  to  be  satisfied  that  it  should  be  built  on 
any  part  of  the  Davis  tract,  or  of  the  Highland  Park  addition.  There 
was  a  small  grove  on  the  southwest  quarter  of  the  Davis  tract,  and  most 
of  the  interested  i)arties  thought  that  this  place  was  especially  desirable 
as  a  location.  And  it  was  generally  believed  that  if  it  was  located  in 
that  part  of  the  cit^y  it  would  be  near  this  grove.  Tliis  may  account  foi 
tiie  naming  of  the  southwest  -iO  acres  in  the  subscription  made  by 
Schuler  and  others.  After  it  was  found  that  the  college  had  been 
located  on  the  northwest  40,  all  appeared  to  be  content,  and  the  High- 
land Park  Company,  of  which  Schuler  was  a  member,  conveyed  the  20 
acres  out  of  the  Highland  Park  addition,  as  they  had  agreed  to  do. 
Soon  a  question  arose  as  to  the  terms  of  the  subscription  that  had  been 
made,  and  when  both  were  procured  and  examined  the  discrepancy  be- 
tween them  was  discovered.  There  is  testimony  tending  to  show  that 
Thompson  then  visited  Schuler,  and  called  his  attention  to  the  fact  that 
the  location  mentioned  in  his  subscription  was  confined  to  the  southwest 
40  of  the  Davis  tract,  whereas  the  college  liad  been  located  on  the 
northwest  40,  and  requested  that  the  subscription  should  be  changed  to 
correspond  with  that  of  Thompson  and  Myton  and  with  the  understand- 
ing of  the  parties.  According  to  the  testimony  of  Thompson  and 
M^'ton,  Schuler  said  there  was  no  need  to  change  the  written  subscrip- 


SECT.    II.] 


SCHULER   V.    IVIYTON. 


251 


tion,  nor  to  make  a  new  one  ;  that  he  would  pay  the  amount  which  he 
had  subscribed,  without  reference  to  the  location.  It  is  also  shown  that 
it  was  more  advantageous  to  Schuler  and  to  the  Highland  Park  Com- 
pany to  have  it  located  where  it  was  located  than  upon  the  southwest  40, 
and  other  testimony  also  shows  that  it  would  have  been  more  advan- 
tageous to  Thompson  and  Myton  to  have  had  it  located  on  the  south- 
west 40  than  the  site  on  which  it  was  located.  Schuler  denies  that  there 
was  any  subsequent  agreement  to  pay  the  subscription  after  the  location 
had  been  made,  and  he  testifies  that  he  positively'  refused  to  pay  the  sub- 
scription from  the  first,  because  the'  location  was  not  in  accordance  with 
the  terms  of  the  subscription  which  he  had  made.  The  jury  found  that 
there  was  a  subsequent  agreement,  as  claimed  by  Thompson  and  Myton, 
but  they  failed  to  find  that  there  was  any  consideration  to  support  that 
agreement. 

If  Schuler's  liabilit3'  is  to  be  measured  by  the  written  subscription 
alone,  no  recover^"  can  be  had  against  him  ;  but  it  was  competent  for 
him  to  modif}'  that  subscription  b}-  oral  agreement,  provided  such  oral 
agreement  is  based  upon  a  suflScient  consideration.  The  want  of  con- 
sideration for  the  subsequent  promise  alleged  to  have  been  made  by  him 
is  the  turning-point  in  the  case,  and  that  question  was  raised  in  the  dis- 
trict  court  on  the  pleadings,  the  evidence,  the  charge  of  the  court,  and 
finctmgs  of  the  jury.     If^  by  reason  of  tjje^promisg  madiL^byJ^chuler, 


closes  that  no  liabilit}'  was  incurred  nor  any  act  done  b^-  Thompson  and 
Myton  on  the  faith  of  Schuler's  promise,  and  some  of  the  testimony  of 
Thompson  himself  tends  to  sustain  this  claim.  It  is  true  that  it  appears 
that  the  $10,000  subscription  which  thev  had  made  was  all  paid  to  the 
college  authorities  after  the  making  of  the  subsequent  promise  by 
Schuler ;  and  they  testify  that  payment  would  not  have  been  made 
except  for  the  promise  made  by  Schuler  and  his  associates.  Tl\e\^ha(l 
hoyever^jjj^e  a  definitepr^^osition_to_JJje,i;joji^^ 
ence,  and  UiT^acce^anceortheir  oflferconsj^itute^^^J^i^^ 

'fixecTtheir  liability.     Tliey  proposed  to  pay  $10,000  in  money  and 


give  tcTthe  coITege"^  acres  of  land  when  the  college  was  located  at  any 
point  within  the  Davis  tract.  When  the  permanent  location  was  made 
their  obligation  was  complete,  and  their  liability  determined.  It  is  not 
clear  from  the  record  just  when  the  location  was  made,  nor  whether  the 
committee  first  made  a  temporary  location,  to  enable  these  guarantors 
to  obtain  assistance  from  others  who  were  supposed  to  be  benefited  by 
the  location.     If  the  first  location  was  temporary  and  conditional,  so 


that  Thompson  and  Myton  were  not  absolutely  bound,  and  if  their, 
agreement  was  completed  and  carried  out  on  the  faith  and  credit  of 
the  subsequent  promise  of  Schuler  and  his  associates,  there  would  be  a 
va]\(]  consideration   to  siippm-t  flip  promise  of  Schuler.     Un   tlie  other 
hand,  if  the  undertaking  of  Thompson  and  Myton  had  become  complete 


252  SCHTJLER   V.   MYTON.  [CHAP.   I. 

and  binding  before  the  subsequent  promise  of  Schuler  was  made,  and 
no  new  liability  was  created,  and  they  paid  nothing  more  than  what  they 
had  prior  to  that  time  contracted  to  pay,  the  promise  would  not  be  en- 
forceable. It  is  well  settled  that  an  agreement  to  do  or  the  doing  of 
that  which  one  is  already  bound  to  do  does  not  constitute  a  consider- 
ation for  a  new  promisf^.  Vanderbilt  v.  Schreyer,  91  N.  Y.  392  ;  Geer 
V.  Archer,  2  Barb.  420  ;  Crosby  v.  AVood,  6  N.  Y.  369  ;  Bartlett  v. 
W3'man,  14  Johns.  260;  Ayres  v.  Railroad  Co.,  52  Iowa,  478;  Rey- 
nolds V.  Nugent,  25  Ind.  328  ;  Deacon  v.  Gridley,  15  C.  B.  295.  See 
also  University  v.  Livingston,  57  Iowa,  307  ;  Hamilton  College  v. 
Stewart,  1  N.  Y.  581  ;  Trustees  v.  Gilbert,  2  Pick,  578  ;  2  Pars.  Contr. 
437  ;  Pollock,  Contr.  161  ;  3  Am.  &  Eng.  Encyc.  of  Law,  834,  and 
cases  cited.  In  the  present  case,  the  jury  found,  as  has  been  stated, 
that  the  subscription  of  Schuler  was  modified  b}'  a  subsequent  pro- 
mise, whereb}'  he  orally  agreed  to  pay  the  full  amount  of  $500,  but 
the  following  questions  and  answei's  show  the  consideration  tg  Ha 
insufficientj 

"What  action,  if  any,  did  the  plaintiffs  take  bj'  reason  of  such  sub- 
sequent promise  of  defendant  which  the}'  would  not  have  taken  if  such 
subsequent  promise  had  not  been  made?     A.  Fulfilled  their  agreement. 

"  What  liabilit}-,  if  any,  did  the  plaintiffs  incur  by  reason  of  such 
subsequent  promise  which  they  had  not  already  incurred  prior  to  the 
making  of  such  subsequent  promise?  A.  Plaintiffs  advanced  the  sub- 
scription of  defendant,  $500." 

The  fulfilling  of  their  agreement  and  the  payment  of  the  mone}* 
which  they  had  already  contracted  to  pay  would  not  constitute  a  legal 
consideration  for  the  promise  of  Schuler.  Although  the  testimony  in 
regard  to  the  consideration  is  not  clear  or  satisfactory,  there  is  sufficient 
upon  which  to  base  these  findings.  Thompson  himself  testifies  that  he 
would  have  been  required  to  pay  his  subscription  without  reference  to 
the  subscription  of  Schuler  or  the  carrying  out  of  the  subsequent  prom- 
ise which  he  had  made.  These  findings  are  inconsistent  with  the 
general  verdict;  and  for  this  reason,  and  the  further  one  that  the 
chai-ge  of  the  court  did  not  fairly  present  to  the  jury  the  rule  of  law 
that  the  agreement  to  do  or  the  doing  of  JbaJJwhinh  ^  ppraon  is  nndpr 
aTegai  obligation  to  do  is  not  a  sufficient  consideration  for  a  new 


promise^  there  must  be  a  new  t^ial. 

For  this  purposethe  judgment  of  the  district  court  will  be  reversed. 
All  the  justices  concurring.^ 

1  Johnson's  Adm.  r.  Seller's  Adm.,  33  Ala.  265  ;  Havana  Press  Drill  Co.  v.  Ashurst, 
148  HI.  11.5  ;  Peelman  v.  Peelman,  4  Ind.  612;  Ford  v.  Garner,  1.5  Ind.  298 ;  Reynolds 
V.  Nugent,  25  Ind.  328  ;  Ritenour  i;.  Mathews,  42  Ind.  7  ;  Harris  v.  Cassady,  107  Ind. 
156  ;  Brownlee  v.  Love,  117  Ind.  420;  Newton  v.  Chicago,  &c.  Ry.  Co.,  66  la.  422  ; 
HoUoway's  Assignee  v.  Rudy,  60  S.  W.  Rep.  650  (Ky.) ;  Putnam  v.  Woodbury,  68  Me. 
58;  Gordon  v.  Gordon,  56  N.  H.  170;  Vanderbilt  i'.  Schreyer,  91  N.  Y.  392;  Seybolt 
V.  New  York,  &c.  R.  R.  Co.,  95  N.  Y.  562  ;  Robinson  v.  Jewett,  116  N.  Y.  40;  Arend 
V.  Smith,  151  N.  Y.  502  ;  Allen  v.  Turck,  8  N.  Y.  App.  Div.  50 ;  Sherwin  v.  Brigham, 
39  Ohio  St.  137  ;  Wimer  v.  Overseers,  104  Pa.  317;  Hanks  v.  Barron,  95  Tenn.  275; 


SECT,   U.J  ENGLAND  V.   DAVIDSON.  253 


ENGLAND   v.    DAVIDSON. 
In  TitE  Qukkn's  Bknch,  Mat  5,  1840. 

[Reported  in  11  Addphus  ^  Ellis,  856.] 

Assumpsit.  The  declaratioa  stated  that  heretofore,  to  wit,  &c.,  the 
defendant  caused  to  be  pubhshed  a  certain  hand-bill,  placard,  or  adver- 
tisement, headed  "  Fifty  pounds  reward  ;  "  whereby,  after  reciting  that, 
late  on  the  night  of,  &c.,  the  mansion-house  of  defendant,  at,  &c.,  was 
feloniously  entered  bj'  three  men,  who  etfected  their  escape ;  that  two 
men  had  been  taken  into  custod}'  on  suspicion  of  having  been  con 
cernod  in  the  felony ;  and  that  a  third,  supposed  to  belong  to  the  gang, 
had  been  traced  to  Carhsle,  and  was  of  the  following  description,  &c., 
the  defendant  did  promise  and  undertake  that  whoever  would  give 
such  information  as  should  lead  to  the  conviction  of  the  offender  or 
oflfenders  should  receive  the  above  leward:  that  plaintilf,  confiding, 
&c.,  did  afterwards,  to  wit,  on,  &c.,  give  such  information  as  led  to  the 
conviction  of  one  of  the  said  offenders,  to  wit,  one  David  Robson  ;  and 
that  afterwards,  to  wit,  at  the  Assizes  for  Northumberland,  D.  R.,  who 
was  guilty  of  the  said  ofl'ence,  to  wit,  the  feloniously  entering,  &c. ,  was 
in  due  course  of  law  convicted  of  the  said  offence  of  felonioush'  enter- 
ing, &c.,  in  consequence  of  such  information  so  given  by  jilaintiff ;  of 
all  which  said  several  premises  defendant  afterwards,  to  wit,  on,  &c., 
had  notice,  and  was  then  requested  by  plaintiff  to  pay  him  the  said 
sum  of  50/.  ;  and  defendant  afterwards,  to  wit,  on,  &c.,  in  consideration 
of  the  premises,  then  promised  plaintiff  to  pay  him  the  sum  of  50/. 
Breach  :  that,  although  defendant,  in  part  performance  of  his  said  prom- 
ise and  undertaking,  to  wit,  on,  &c.,  did  pay  to  plaintiff  the  sum  of  bl. 
5s.,  in  part  payment  of  the  said  sum  of  50/.,  yet,  &c.  (breach:  non- 
payment of  the  residue) . 

Third  plea  :  That  heretofore,  and  long  before  and  at  the  time  when 
the  house  of  defendant  was  so  feloniously  entered,  and  continually 
from  thence  hitherto,  plaintiff  was,  and  now  is,  a  constable  and  police 
officer  of  the  district  where  the  said  house  of  defendant  is  situate,  and 
the  said  offence  was  committed  ;  and  it  then  was  the  duty  of  plaintiff, 
as  such  constable  and  police  officer,  to  have  given  and  to  give  every 
information  which  might  lead  to  the  conviction  of  the  said  offender, 
and  to  apprehend  him  and  prosecute  him  to  conviction,  if  guilty,  with- 

Kenigsberger  v.  Wingate,  31   Tex.  42 ;  Davenport  v.  Congregational  Soc.  33  Wis. 
387,  ace. 

Similarly  performance  of  a  statutory  or  public  duty  will  not  support  a  promise  by 
an  individual.  Voorhees  v.  Reed,  17  111.  App.  21  ;  Shortle  i-.  Terre  Haute,  &c.  R.  R. 
Co.,  131  Ind.  338  ;  Grant  v.  Green,  41  la.  88 ;  Newton  v.  Chicago,  &c.  Ry.  Co.,  66  la. 
422 ;  Kansas  City,  &c.  R.  R.  Co.  v.  Morley,  45  Mo.  App.  304  ;  Withers  v.  Ewing,  40 
Ohio  St.  400. 


254  ENGLAND   V.   DAVIDSON.  [CHAP.   I. 

out  anv  payment  or  reward  to  him  made  in  that  behalf:  tli;5l,  hv  the 
said  advertisement  partly  set  out  iu  the  declaration,  defendant  gave 
notice  and  promised  that  whoever  would  give  such  information  to 
plaintiff,  therein  described  as  police  officer  Hexham,  as  should  lead  to 
the  conviction  of  the  offender  or  offenders,  should  receive  the  said 
reward  in  the  said  advertisement  mentioned,  and  in  no  other  manner 
whatever  :  and  that,  by  reason  of  the  premises,  the  said  promise  waa 
and  is  void  in  law.     Verification. 

Demurrer :  assigning  for  causes  that  the  plea  amounts  to  the  general 
issue,  and  does  not  deny,  or  confess  and  avoid,  and  is  multifarious,  and 
tenders  an  immaterial  issue.     Joinder. 

Ingham  now  appeared  for  the  plaintiff;  but  the  Court  called  on 

Martin^  for  the  defendant.  No  consideration  is  shown  on  this  record 
for  the  defendant's  promise  ;  the  plaintiff  was  bound  to  do  that,  the 
doing  of  which  is  stated  as  the  consideration.  The  dut}'  of  a  constable 
is  to  do  his  utmost  to  discoA'er,  pursue,  and  apprehend  felons.  Com. 
Dig.,  Leet  (M.  9),  (M.  10)  ;  Justices  of  Peace  (B.  79).  It  has  been  laid 
down  that  a  sailor  cannot  recover  on  a  promise  by  the  master  to  pay 
him  for  extra  work  in  navigating  the  ship,  the  sailor  being  bound  to  do 
his  utmost,  independently  of  any  fresh  contract.  Harris  v.  Watson,* 
explained  by  Lord  Ellenborough  in  Stilk  v.  Myrick.^  The  principle 
was  recognized  in  Newman  v.  Walters,^  where  the  case  of  a  passenger 
was  distinguished.  [Coleridge,  J.  Those  cases  turn  merely  on  the 
nature  of  the  contract  made  by  the  sailor.]  If  the  duty  here  incum- 
bent on  the  plaintiff  was  to  do  all  that  the  declaration  lays  as  the  con- 
sideration, the  case  is  the  same  as  if  he  had  been  under  a  previous 
contract  to  do  all.  The  cases  on  the  subject  of  consideration  are  col- 
lected in  note  (b)  to  Barber  v.  F'ox.  \^Ingham.  The  constable  was 
not  bound  to  procure  evidence.]  The  contract  here  declared  upon  is 
against  public  policy. 

Lord  Denman,  C.  J.  I  think  there  may  be  sei-vices  which  the  con- 
stable is  not  bound  to  render,  and  which  he  may  therefore  make  the 
ground  of  a  contract.  "We  should  not  hold  a  contract  to  be  against 
the  policy  of  the  law,  unless  the  grounds  for  so  deciding  were  very 
clear. 

LiTTLEDALE,  Patteson,  and  Coleridge,  JJ.,  concurred. 

Judgment  for  the  plaintiff.  * 

1  Peake,  N.  P.  C.  72. 

2  2  Campb.  317  ;  s.  c.  6  Esp.  129. 
8  3  B.  &  P.  612. 

4  See  Bent  v.  Wakefield  Bank,  4  C.  P.  D.  1. 


SECT,    n.]  POOL  V.   THE   CITY   OF    BOSTON.  255 


GEORGE   F.   POOL  v.   THE   CITY   OF   BOSTON. 

Supreme  Judicial  Court  of  Massachusetts, 
November  Term,   1849. 

[Reported  in  5  Cushing,  219.] 

This  was  an  action  of  assumpsit  brought  in  this  court  to  recover 
the  sum  of  $2000,  as  a  reward  to  which  the  plaintiff  alleged  he  was 
entitled,  and  was  submitted  to  the  court  upon  an  agreed  statement 
of  facts,  from  which  it  appeared  as  follows:  — 

The  city  government  of  Boston  having  authorized  the  mayor  to 
offer  a  reward  "for  the  detection  and  conviction  of  any  incendiary  or 
incendiaries"  who  had  set  fire  to  any  building  in  the  city,  or  might 
do  so,  within  a  given  period,  the  mayor  accordingly  offered  the  re- 
ward above  mentioned  "for  the  detection  and  conviction  of  said 
incendiary  or  incendiaries "  within  the  time  specified. 

The  plaintiff  was  a  watchman  of  the  city,  duly  appointed,  and 
while  in  the  performance  of  his  duty  as  such  watchman,  discovered 
one  Edmund  Hollihan  setting  fire  to  a  certain  outhouse  of  one  Chase, 
in  the  night  of  the  20th  of  September,  1845.  The  plaintiff  thereupon 
made  a  complaint  in  the  police  court  against  Hollihan  for  burning 
a  dwelling-house  in  the  night  time,  upon  which  complaint  he  wag 
committed  for  trial.  He  was  afterwards  indicted  at  the  December 
term  of  the  municipal  court,  1845,  for  setting  fire  to  the  outhouse  of 
Chase,  in  the  night  time  following  the  20th  of  September,  1845,  and 
at  the  February  terra,  1846,  was  tried,  found  guilty,  and  sentenced 
to  six  months'  imprisonment  in  the  house  of  correction. 

The  plaintiff,  thereupon,  claimed  the  above  reward  of  $2000,  and 
brought  this  action  to  recover  the  same. 

M.  S.  Clarke  for  the  plaintiff. 

P.  W.  Chandler^  city  solicitor,  for  the  defendants. 

Wilde,  J.  The  defence  to  this  action  is,  that  the  plaintiff  has 
done  no_njOjy  than  j t  was  his  duty  as  a  watchman  to  d^i  '^"'^  \\^^t  « 
^romise^f  jjeward^  toj^an  for  doing  his  duty  is  illegal,  orvoid 
for  want  of  consideration.  The  leading  case  in  support  of  the  de- 
fence  is  that  of  Stotesbury  v.  Smith,  2  Bur.  924,  in  which  it  was  held, 
that  it  was  illegal  for  the  officer,  in  that  case,  to  take  money  for  doing 
his  duty.  He  was  a  bailiff,  and  the  defendant  promised  to  pay  him 
a  sum  of  money,  in  case  he  would  accept  the  defendant  and  another 
to  be  bail  for  a  third  person.  It  was  decided,  that  no  action  could 
be  maintained  on  such  a  promise.  See  also  England  v.  Davidson, 
3  P.  &  D.  594. 

The  same  principle  has  been  applied  to  promises  made  to  persons 
not  being  public  officers;  such  as  promises  to  seamen  to  pay  them 
extra  wages  for  the  performance  of  their  duty. 


256  POOL   V.   THE   CITY   OF   BOSTON.  [CHAP.    I. 

"Every  seaman,"  says  Chancellor  Kent,  in  his  Commentaries 
(3  Kent,  185),  "is  bound,  from  the  nature  and  terms  of  his  con- 
tract, to  do  his  duty  in  the  service  to  the  utmost  of  his  ability,  and, 
therefore,  a  promise  made  by  the  master  when  the  ship  is  in  distress 
to  pay  extra  wages  as  an  inducement  to  extraordinary  exertion,  is 
illegal  and  void. "  So  it  was  held  by  Lord  Kenyon,  in  the  case  of 
Harris  v.  Watson,  Peake,  72.  But  it  was  held  by  Lord  Ellenborough, 
that  such  a  promise  was  not  void  on  the  ground  of  illegality,  but  on 
the  ground  of  a  want  of  consideration,  which,  as  it  seems  to  us,  is 
better  founded  on  general  principles.  Stilk  v.  Myrick,  2  Camp. 
317;  Bridge  v.  Cage,  Cro.  Jac.  103.  But  however  this  may  be,  it 
is  well  settled  that  such  a  promise  is  void. 

So  it  has  been  decided,  that  a  promise  of  extra  compensation  to 
a  witness,  in  case  he  would  attend  court,  and  give  testimony,  at  con- 
siderable expense  and  inconvenience  to  himself,  was  void,  and  that 
he  could  only  recover  his  fees  allowed  by  law,  he  having  done  no 
more  than  he  was  in  duty  bound  to  do. 

These  decisions,  and  the  principles  on  which  they  are  founded,  are 
decisive  against  the  plaintiff's  claim  in  the  present  case;  it  was  his 
duty,  when  on  the  watch  he  discovered  Hollihan  setting  fire  to  the 
outhouse,  to  make  complaint,  and  cause  him  to  be  arrested,  or  to 
give  notice  to  the  mayor,  or  some  other  city  officer,  that  they  might 
prosecute  him.  He  preferred  himself  to  prosecute  rather  than  to  give 
notice  to  the  city  authorities;  doubtless  with  the  hope  of  entitling 
himself  thereby  to  the  large  reward  offered.  But  this  will  not  help 
him.  The  principal  object  of  the  reward  offered  was  to  obtain  the 
detection  of  the  offender;  the  conviction  was  required  to  ascertain 
who  was  the  offender.  But  to  entitle  the  plaintiff  to  the  reward,  he 
must  show  that  he  is  so  entitled,  as  well  for  the  detection  as  for  the 
conviction  of  the  offender.  The  reward  cannot  be  apportioned.  But 
the  plaintiff  is  not  entitled  thereto  for  either  service.  He  discovered 
the  offender  while  he  was  on  duty  as  a  watchman,  and  was  bound  to 
give  notice,  or  to  cause  him  to  be  arrested;  and  he  preferred  the 
latter  course;  but  he  could  not  thereby  subject  the  defendants  to  a 
liability,  to  which  they  would  not  be  subject,  if  he  had  given  notice 
to  some  one  of  the  city  officers. 

For  these  reasons,  briefly  stated,  and  on  principles  well  settled  by 
the  authorities,  we  are  of  opinion  that  this  action  cannot  be  main- 
tained;   and  the  plaintiff  must  become  nonsuit.^ 

1  Witty  V.  Southern  Pacific  Co.,  76  Fed.  Rep.  217  ;  Morrell  v.  Quarles,35  Ala.  544, 
548 ;  Grafton  v.  St.  Louis,  &c.  Ry.  Co.,  51  Ark.  504  ;  Lees  v.  Colgan,  120  Cal.  262  ; 
Matter  of  Russell's  Application,  51  Conn.  577  ;  Stacy  v.  State  Bank,  5  111.  91  ;  Hogan 
r.  Stophlet,  179  111.  150  ;  Hayden  v.  Souger,  56  Ind.  42,  48  ;  Marking  v.  Needy,  8  Bush, 
22 ;  Davies  v.  Burns,  5  Allen,  349  ;  Brophy  v.  Marble,  118  Mass.  548  ;  Studley  v.  Bul- 
lard,  169  Mass.  295;  Foley  i\  Piatt,  105  Mich.  635;  Warner  v.  Grace,  14  Minn.  487; 
Day  V.  Putnam,  Ins.  Co.,  16  Minn.  408;  Ex  parte  Gore,  57  Miss.  251 ;  Kick  v.  Merry, 
23  Mo.  72  ;  Thornton  v.  Missouri,  &c.  Ry.  Co.,  42  Mo.  App.  58  ;  Hatch  v.  Mann,  15 
Wend.  44  ;  Gillmore  v.  Lewis,  12  Ohio,  281  ;  Smith  ;,•.  Wbildin,  10  Pa.  39  ;  Stamper  v. 


SECT,   n.]  KEITH  &   HASTINGS   V.   HOLES.  267 

KEITH   &   HASTINGS,    Admrs.,    &c.   v.  ALFRED  MILES. 

Mississippi  Supreme  Court,  October  Term,   1860. 

[Reported  in  39  Mississippi,  442.] 

Error  to  the  Probate  Court  of  Panola  County.  Hon.  J.  T.  M. 
Burbridge,  judge. 

H.  A.  Barr,  for  plaintiffs  in  error. 

The  item  in  the  account  for  board  ought  to  have  been  allowed. 
The  guardian  had  a  right  to  command  the  ward  to  board  with  him, 
and  the  ward  was  under  obligation  to  obey  him.  There  was  there- 
fore no  consideration  for  the  promise  of  the  guardian  to  board  him 
without  charge. 

If  the  master  of  a  ship  promise  his  crew  an  addition  to  their  fixed 
wages  in  consideration  of  extraordinary  exertions  during  a  storm, 
this  promise  is  nudum  pactum  —  the  performance  of  an  act  which  it 
was  before  legally  incumbent  on  the  party  to  perform,  being  in  law 
an  insuflicient  consideration.     Chitty  on  Con.  54. 

And  so  it  would  be  in  any  case  where  the  only  consideration  of  the 
defendant's  promise  was  the  promise  of  the  plaintiff  to  do,  or  his 
actually  doing,  something  which  he  was  previously  bound  to  do. 
Chitty  on  Con.  54. 

No  counsel  offered  for  defendant  in  error. 

Harris,  J.,  delivered  the  opinion  of  the  court: 

The  defendant  in  error,  when  about  ten  or  twelve  years  old,  left 
the  house  of  his  guardian,  Alexander  Miles,  plaintiffs'  intestate,  and 
went  to  the  house  of  his  uncle  by  marriage,  "and  there  in  the  neigh- 
borhood remained  until  his  guardian  persuaded  him  to  go  and  live 
with  him,  making  him  the  following  promises:  that  he,  the  guardian, 
would  not  charge  him,  the  said  defendant,  any  board;  that  he  would 
send  him  to  school  and  make  no  charge  for  the  same."  The  defend- 
ant went  to  live  with  plaintiffs'  intestate,  his  said  guardian,  and  re- 
mained there  about  twelve  months. 

On  final  settlement  of  the  guardianship  account,  plaintiffs  in  error 
claimed  allowance  of  sixty  dollars  for  the  board  of  defendant,  and 
also  amounts  paid  for  tuition. 

Exceptions  were  filed  to  these  items  in  the  court  below,  and  sus- 

Temple,  6  Humph.  113  ;  Brown  v.  Godfrey,  33  Vt.  120,  ncc.  If  more  is  done  than  the 
leaal  duty  requires  tliere  is  sufficient  consideration.  Morrell  v.  Quarles,  35  Ala.  544 ; 
Hayden  v.  Souger,  56  Ind.  42;  Trundle  v.  Riley,  17  B.  Mon.  396;  Pilie  v.  New 
Orleans,  19  La.  Ann.  274;  Gregg  v.  Pierce,  53  Barb.  387  ;  McCandless  v.  Alleghany, 
&c.  Co.,  152  Pa.  139  ;  Texas  Cotton-Press  Co.  v.  Mechanics'  Co.,  54  Tex.  319  ;  Davis  v. 
Munson,  43  Vt.  576 ;  Reif  v.  Page,  55  Wis.  496.  See  also  England  v.  Davidson,  11  A. 
&  E.  856  ;  Bent  v.  Wakefield  Bank,  4  C.  P.  D.  1  ;  Long  v.  Neville,  36  Cal.  455 ;  Marsh 
V.  Gold,  2  Pick.  289 ;  Commonwealth  v.  Vandyke,  57  Pa.  34. 

VOL.  I.  —  17 


258  FINK   V.    SMITH.  [CHAP.   L 

tained  by  the  court.     This  writ  of  error  is  now  prosecuted  here  to 
revise  that  judgment. 

It  appears  in  this  record  that  the  defendant  paid  no  board  at  his 
uncle's  house  during  his  stay  there;  and  upon  this  ground,  we  sup- 
pose, it  was  thought,  in  the  court  below,  a  sufficient  consideration 
arose  to  sustain  the  promise  of  the  guardian  to  board  and  school  the 
defendant  without  charge. 

Between  adults,  or  where  no  duty  of  obedience  existed,  a  promise 
made  under  these  circumstances  would  doubtless  be  obligatory,  upon 
the  ground  that  injury  and  loss  would  otherwise  be  occasioned  to  de- 
fendant by  his  abandonment  of  his  uncle's  house,  where  he  paid  no 
board.  But  a  different  rule  is  heldJn-£Me3jwJier£jJK4s^UieJ£gai.4ut^ 
of_the  promisee  to  do,  without  reward,  tbe_act^induced  hyjhe  promise 
sought  tojia^enforced. 

~~Ko  action  will  lie  to  enforce  a  promise  for  doing  that  which  it  was 
the  party's  legal  duty  to  do,  without  such  promise  or  reward,  "for 
this  would  be  extortion  and  illegal."  2  Tucker's  Lect.  137;  2  Burr. 
R.  924;  2  Black.  R.  204;  Chitty  on  Con.  54. 

Tliejvfard  in  tbis  case,  being  under  the  legal  control  of  his_gXLaj:^- 
dian,  ^ad_no  right  to  rehpl  ftgain,qt  hia  nnthm-itv,  leave  his  house^_Qr_ 
refuse  obprlionco  to  hifl  lawful  dirprtions  It  was  his  legal  duty,  as 
well  as  his  highest  interest,  to  submit  himself  cheerfully  to  the  direc- 
tions of  his  guardian;  and  he  cannot  be  permitted  to  exact  a  reward 
for  the  performance  of  a  duty  so  obviously  incumbent  on  him.  The 
law  will  not  presume  that  injury  or  loss  could  arise  to  him  in  the  dis- 
charge of  that  duty,  and  hence  no  consideration  for  the  promise  to 
board  and  school  him  could  arise  to  support  it,  against  his  guardian. 

The  promise  relied  on  to  avoid  the  items  of  board  and  tuition 
claimed  In  the  account  of  j)laintiff's  intestate  bMng^wittLOJit  ronsidera- 
tton  is  void.  The  court  therefore  erred  in  rejecting  these  items  on 
that  ground. 

Let  the  judgment  and  decree  of  the  court  below  be  reversed,  and 
cause  remanded  for  further  proceedings  in  accordance  with  this 
opinion.' 

V 


WILLIAM  McCLELLAN  FINK  v.   H.   S.   SMITH,  Appellakt. 

Pennsylvania  Supreme  Court,  May  22-July  18,   1895 

[Reported  in  170  Pennsylvania,  124.] 

Dean,  J.  Smith,  the  defendant,  at  a  sheriff's  sale  of  the  personal 
property  of  one  Sarah  Hyde,  wife  of  George  Hyde,  purchased  a  mare ; 
then,  as  a  mere  act  of  kindness  towards  Mrs.  Hyde,  he  left  the  animal 
temporarily  with  her;   some  months  afterwards,  George   Hyde,  the 

1  See  also  Orr  v.  Sanford,  74  Mo  App.  187. 


SECT,   n.]  FINK   V.   SMITH.  259 

husband,  sold  the  mare  to  Fink,  the  plaintiff,  who  took  her  into  his 
possession;  Smith,  the  owner,  hearing  of  this,  went  to  Fink  and  de- 
manded his  property,  but  he  refused  to  surrender  possession;  then 
Smith  informed  Gallatin,  the  sheriff,  who  had  sold  her  to  him,  of  the 
wrong  and  threatened  to  replevy  her;  Gallatin  replied  that  was  not 
necessary  as  he  would  get  her  for  him;  Gallatin  went  to  Fink,  and 
obtained  a  promise  from  him  to  restore  the  mare  to  Smith  without 
a  replevin;  then  Smith  again  went  to  Fink,  and  the  mare  was  de- 
livered to  him  on  the  condition  that,  if  on  an  indictment  for  larceny 
of  the  mare  then  pending  against  George  Hyde  there  should  be  an 
acquittal,  the  mare  should  be  returned,  but  if  Hyde  were  convicted, 
Smith  was  to  keep  her.  Hyde  was  acquitted  of  larceny.  There- 
upon, Fink  replevied  the  mare.  When  the  case  came  to  trial,  the 
facts  turned  out  as  we  have  stated  them  from  the  admissions  of  the 
parties  and  the  findings  of  the  jury.  The  verdict  was  for  Fink, 
plaintiff,  in  damages  to  the  value  of  the  mare.  Hence  this  appeal 
by  Smith,  defendant. 

The  controlling  assignment  of  error  and  which  in  substance  em- 
braces all  the  error  alleged  is  raised  by  the  following  excerpt  from 
the  charge  of  the  learned  judge  of  the  court  below:  "  The  only  ques- 
tion remaining  in  this  case  is  whether  the  mare  was,  under  this  agree- 
ment, to  be  returned  to  Fink,  if  Hyde  was  acquitted  of  the  charge 
in  court  of  the  larceny  of  the  mare.  If  so,  then  we  instruct  you  that 
there  was  sufficient  consideration  for  that  agreement  at  the  time  of 
the  lawsuit  in  order  to  recover  her,  and  at  the  time  this  mare  was  in- 
volved in  the  threatened  lawsuit;  and  the  only  way  that  he  could  get 
her  without  a  lawsuit  was  by  making  this  agreement  that  it  is  alleged 
on  the  part  of  plaintiff  was  made  between  Fink  and  Smith.  If  you 
believe  such  an  agreement  was  made  then  your  verdict  should  be  for 
the  plaintiff  for  the  value  of  the  mare  with  interest  from  that  time." 

Was  this  correct  instruction,  as  to  the  law  applicable  to  the  evi- 
dence? There  was  no  dispute  as  to  the  ownership  of  the  property; 
the  mare,  it  was  conceded,  belonged  to  Smith;  and  although  he  testi- 
fied no  such  conditional  bargain  was  made,  it  was  just  as  positively 
testified  to,  on  the  other  side,  that  it  was  made,  and  the  jury  have 
found  the  fact  against  him.  So,  we  have  the  unquestioned  owner  of 
the  mare  bargaining  with  one  in  wrongful  possession  for  her  sur- 
render; the  possession  thereafter  to  be  determined  by  the  verdict  in 
a  criminal  prosecution  then  pending.  Was  his  possession,  thus  ob- 
tained, wrongful  as  against  Fink,  when  the  event  of  the  prosecution 
was  the  acquittal  of  Hyde?  That  depends  on  the  validity  of  the  con- 
tract between  them. 

1.  The  contract  was  void,  because  based  on  a  fact  which  did  not 
exist,  though  both  parties  assumed  it  to  be  a  fact.  Fink  purchased 
from  George  Hyde;  both  assumed  that  Hyde's  title  would  necessarily 
be  determined  by  his  acquittal  or  conviction  of  larceny;  but  the 
event  of  the  prosecution  in  no  wise  determined  that;  it  determined 


260  FINK   V.   SMITH.  [CHAP.   I. 

only  that  the  evidence  did  not  show,  beyond  a  reasonable  doubt,  a 
felonious  intent;  what  the  weight  of  it  showed,  we  do  not  know;  but 
the  admitted  facts  here,  that  the  mare  is  Smith's,  and  that  Hyde  sold 
her,  also  show  conclusively  that  Hyde  was  guilty  of  either  larceny 
or  trespass.  So  their  assumption,  that  the  criminal  prosecution 
would  determine  Hyde's  title,  and  necessarily  theirs,  was  a  mutual 
mistake  of  fact.  "Where  certain  facts  assumed  by  both  parties  are 
the  basis  of  a  contract,  and  it  subsequently  appears  such  facts  do 
not  exist,  the  contract  is  inoperative:"  Horbach  v.  Gray,  8  W.  497; 
Miles  V.  Stevens,  3  Pa.  21;  Willings  v.  Peters,  7  Pa.  287;  Prevail  v. 
Fitch,  5  AVhart.  325. 

2.  There  was  no  consideration  to  support  Smith's  promise.  A 
promise  made  by  the  owner  to  obtain  possession  of  his  goods,  which 
at  the  time  are  wrongfully  withheld  from  him,  is  without  considera- 
tion: Chitty  on  Contracts,  p.  51;  Addison  on  Contracts,  13.  This 
principle  is  conceded  by  the  learned  judge  of  the  court  below,  and 
the  undoubted  wrongful  possession  by  Fink  of  Smith's  property  is 
also  conceded.  But  he  assumes,  there  is  no  evidence  that  Fink  knew 
this  at  the  time  he  delivered  it  to  Smith,  and  therefore  the  contract 
should  be  treated  as  a  compromise  of  doubtful  litigation,  which  is 
a  good  consideration  to  support  a  contract.  But  the  error  in  this 
view  is,  that  Fink's  wrongful  possession  did  not  depend  on  what  he 
knew,  but  on  the  fact.  Was  it  Smith's  property?  Had  he  demanded 
it  from  him  who  wrongfully  detained  it?  If  these  were  the  facts, 
and  they  are  not  denied,  then  there  was  no  consideration  for  Smith's 
promise,  for  no  benefit  passed  to  Smith,  and  Fink  sustained  no  loss 
by  the  contract;  to  hold  that  the  abandonment  of  a  wholly  wrongful 
detention  of  another's  property  can  form  the  basis  of  a  compromise 
contract  with  the  owner  is  direct  encouragement  to  the  commission 
of  wrong  for  profit,  and  for  this  very  reason  the  law  holds  the  con- 
tract to  be  without  consideration.  If  Fink  had  been  indicted  for  the 
larceny  of  the  mare,  his  knowledge  of  the  ownership  would  have  been 
material  in  determining  his  guilt,  but  it  is  of  no  moment  in  deter- 
mining the  fact  of  ownership. 

3.  While  we  think  it  is  of  doubtful  public  policy  to  enforce  a  con- 
tract, where  the  right  to  property  is  made  to  turn  on  a  verdict  in  a 
criminal  prosecution,  in  which  both  parties  to  the  contract  are  wit- 
nesses, we  do  not  decide  the  case  on  that  point. 

We  are  of  opinion,  however,  the  contract  was  based  on  a  mutual 
mistake  of  a  fact,  which  had  no  existence,  and  further,  was  without 
consideration.     Therefore  the  judgment  is  reversed.^ 

1  Cowper  V.  Green,  7  M.  &  W.  633 ;  Wendover  v.  Baker,  121  Mo.  273 ;  Conover  v. 
StUweU,  34  N.  J.  L.  54  ;  Crosby  v.  Wood,  6  N.  Y.  369  ;  Tolhurst  u.  Powers,  133  N.T. 
460 ;  Martin  «;.  Armatrong,  62  S.  W.  Rep.  83  (Tex.  Civ.  App.),  ace. 


SECT,   n.]  HAMER   V.   SID  WAT.  261 


LOUISA  W.    HAMER,    Appellant,    v.   FRANKLIN   SIDWAY, 

AS   Executor,   Respondent. 

New  York  Court  op  Appeals,  February  24-April  14,  1891. 

[Reported  in  124  New  York,  538.] 

Parker,  J.^  The  question  which  provoked  the  most  discussion  by 
counsel  on  this  appeal,  and  which  lies  at  the  foundation  of  plaintiff's 
asserted  right  of  recovery,  is  whether  by  virtue  of  a  contract  de- 
fendant's testator  William  E.  Stoi-y  became  indebted  to  his  nephew 
William  E.  Story,  2d,  on  his  twenty-first  birthday,  in  the  sum  of  five 
thousand  dollars.  The  trial  court  found  as  a  fact  that  "on  the  20th 
day  of  March,  1869,  .  .  .  William  E.  Story  agreed  to  and  with 
William  E.  Story,  2d,  that  if  he  would  refrain  from  drinking  liquor, 
using  tobacco,  swearing,  and  playing  cards  or  billiards  for  money 
until  he  should  become  21  years  of  age,  then  he,  the  said  William 
E.  Story,  would  at  that  time  pay  him,  the  said  William  E.  Story,  2d, 
the  sum  of  So, 000  for  such  refraining,  to  which  the  said  William  E. 
Story,  2d,  agreed,"  and  that  he  "in  all  things  fully  performed  his 
part  of  said  agreement." 

The  defendant  contends  that  the  contract  was  without  considera- 
tion to  support  it,  and,  therefore,  invalid.  He  asserts  that  the 
promisee  by  refraining  from  the  use  of  liquor  and  tobacco  was  not 
harmed  but  benefited ;  that  that  which  he  did  was  best  for  him  to  do 
independently  of  his  uncle's  promise,  and  insists  that  it  follows  that 
unless  the  promisor  was  benefited,  the  contract  was  without  considera- 
tion. A  contention,  which  if  well  founded,  would  seem  to  leave  open 
for  controversy  in  many  cases  whether  that  which  the  promisee  did 
or  omitted  to  do  was,  in  fact,  of  such  benefit  to  him  as  to  leave  no 
consideration  to  support  the  enforcement  of  the  promisor's  agreement. 
Such  a  rule  could  not  be  tolerated,  and  is  without  foundation  in  the 
law.  The  Exchequer  Chamber,  in  1875,  defined  consideration  as 
follows:  "A  valuable  consideration  in  the  sense  of  the  law  may  con- 
sist either  in  some  right,  interest,  profit,  or  benefit  accruing  to  the 
one  party,  or  some  forbearance,  detriment,  loss,  or  responsibility 
given,  suffered,  or  undertaken  by  the  other."  Courts  "  will  not  ask 
whether  the  thing  which  forms  the  consideration  does  in  fact  benefit 
the  promisee  or  a  third  party,  or  is  of  any  substantial  value  to  any 
one.  It  is  enough  that  something  is  promised,  done,  forborne,  or 
suffered  by  the  party  to  whom  the  promise  is  made  as  consideration 
for  the  promise  made  to  him.     Anson's  Prin.  of  Con.  63. 

"In  general  a  waiver  of  any  legal  right  at  the  request  of  another 
party  is  a  sufficient  consideration  for  a  promise."  Parsons  on  Con- 
tracts, 444. 

1  A  portion  of  the  opinion  is  omitted. 


262  DUNTON   V.  DUNTON.  [CHAP.    I. 

"Any  damage,  or  suspension,  or  forbearance  of  a  right  will  be 
sufficient  to  sustain  a  promise."     (Kent,  vol.  2,  4G5,  12th  ed.) 

Pollock,  in  his  work  on  contracts,  page  1G6,  after  citing  the  defini- 
tion given  by  the  Exchequer  Chamber  already  quoted,  says:  "The 
second  branch  of  this  judicial  description  is  really  the  most  important 
one.  Consideration  means  not  so  much  that  one  party  is  profiting  as 
that  the  other  abandons  some  legal  right  in  the  present  or  limits  his 
legal  freedom  of  action  in  the  future  as  an  inducement  for  the  promise 
of  the  first." 

Now,  applying  this  rule  to  the  facts  before  us,  the  promisee  used 
tobacco,  occasionally  drank  liquor,  and  he  had  a  legal  right  to  do  so. 
That  right  he  abandoned  for  a  period  of  years  upon  the  strength  of 
the  promise  of  the  testator  that  for  such  forbearance  he  would  give 
him  five  thousand  dollars.  We  need  not  speculate  on  the  effort  which 
may  have  been  required  to  give  up  the  use  of  those  stimulants.  It 
is  sufficient  that  he  restricted  his  lawful  freedom  of  action  within 
certain  prescribed  limits  upon  the  faith  of  his  uncle's  agreement, 
and  now  having  fully  performed  the  conditions  imposed,  it  is  of  no 
moment  whether  such  preformance  actually  proved  a  benefit  to  the 
promisor,  and  the  court  will  not  inquire  into  it;  but  were  it  a  proper 
subject  of  inquiry,  we  see  nothing  in  this  record  that  would  permit 
a  determination  that  the  uncle  was  not  benefited  in  a  legal  sense. 
Few  cases  have  been  found  which  may  be  said  to  be  precisely  in 
point,  but  such  as  have  been  support  the  position  we  have  taken.  ^ 


/  DUNTON  V.   DUNTON. 

Victoria  Supreme  Court,  March  17,  31,  1892. 

[Reported  in  18  Victorian  Law  Reports,  114.] 

HooD,  J.  Louisa  Dunton  sued  John  Dunton  in  the  County  Court 
to  recover  the  sum  of  Ql.  as  the  amount  agreed  to  be  paid  by  the  de- 
fendant under  a  written  agreement  for  the  maintenance  of  the  plaintiff. 
At  the  trial  a  question  was  raised  as  to  whether  the  alleged  agreement 
was  binding  upon  the  defendant,  and  that  question  was  reserved  for 
the  opinion  of  this  Court. 

The  document  is  called  a  memorandum  of  agreement,  and  appar- 
ently was  signed  by  both  parties.  It  recites  that  they  had  been  mar- 
ried, but  that  the  marriage  had  been  dissolved  on  the  petition  of  the 
husband,  and  it  then  proceeds  as  follows:  "And  whereas,  notwith- 
standing the  said  dissolution  the  said  John  Dunton  is  desirous  of 
making  provision  for  the  said  Louisa  Dunton  so  long  as  she,  the  said 
Louisa  Dunton,  shall  conduct  herself  with  sobriety,  and  in  a  respect- 
able, orderly,  and  virtuous  manner.  Now  this  agreement  witnesseth 
that  in  consideration  of  the  premises  the  said  John  Dunton  agrees  to 

1  Talbott  V.  Steimnons'  Ex.,  89  Ky.  222,  ace.     See  also  Lindell  v.  Rokes,  60  Mo.  249. 


SECT,   n.]  DUNTON   V.   DUNTON.  263 

pay  the  said  Louisa  Dunton  the  sum  of  6^.  per  month."  It  then  con- 
tains a  proviso  that  in  the  event  of  Louisa  Dunton  committing  any 
act  whereby  she  or  the  said  John  Dunton  may  be  subjected  to  hate,  con- 
tempt, or  ridicule,  or  if  she  shall  not  conduct  herself  with  sobriety, 
and  in  a  respectable,  orderly,  and  virtuous  manner,  and  with  all  respect 
to  the  said  John  Dunton,  then  he  may  put  an  end  to  the  agreement. 

The  motive  of  the  defendant  in  signing  this  document  is  clear.  He 
desired  to  provide  for  the  woman  who  had  been  his  wife,  and  who 
was  the  mother  of  his  children,  in  such  a  way  as  to  induce  her  not  to 
disgrace  herself,  him,  or  them.  But  the  question  we  have  to  decide 
is  whether  this  document  constitutes  a  valid  agreement,  and  we  have 
nothing  to  do  with  the  motives  of  the  parties  except  so  far  as  they  are 
expressed  in  a  binding  legal  document.  (A  man's  motives  cannot  form 
any  consideration  for  a  contract.)  If  this  document  is  to  be  held 
binding  upon  the  defendant  it  must  be  because  there  is  some  legal 
consideration  moving  from  the  plaintiff  upon  which  the  defendant's 
promise  is  founded.  In  my  opinion  the  only  consideration  expressed 
on  the  face  of  the  document  is  the  defendant's  desire  to  make  provi- 
sion for  the  plaintiff,  and  that  clearly  would  not  be  sufficient.  It 
was,  however,  contended  that  the  real  consideration  is  an  implied 
promise  by  her  that  she  will  conduct  herself  with  sobriety,  and  in  a 
respectable,  orderly,  and  virtuous  manner,  and  that  the  benefit  to  the 
defendant  would  lie  in  the  prevention  of  the  annoyance  and  disgrace 
that  might  be  caused  to  him  and  his  children  in  the  event  of  the  plain- 
tiff misbehaving  herself.  I  cannot  imply  such  a  promise  from  the 
document,  but  even  if  it  were  expressed  therein  it  would  not,  in  my 
opinion,  constitute  a  consideration  for  the  defendant's  agreement. 
A  promise  in  order  to  be  a  good  consideration  must  be  such  as  may 
be  enforced.  It  must,  therefore,  be  not  only  lawful,  and  in  itself 
possible,  but  it  must  also  be  reasonably  definite.  Now  a  promise  by 
a  woman  that  she  will  conduct  herself  with  sobriety,  and  in  a  respect- 
able, orderly,  and  virtuous  manner,  seems  to  me  to  be  about  as  vague 
a  promise  as  can  be  imagined.  What  are  the  acts  which  she  is  to  do 
or  to  refrain  from  doing?  What  is  the  meaning  to  be  attached  to  the 
words  if  looked  at  in  the  light  of  a  definite  promise?  A  promise  by 
a  woman  that  she  will  conduct  herself  with  sobriety  may  mean  that 
she  will  not  drink  intoxicating  liquor  at  all,  or  that  she  will  not  get 
drunk,  or  it  may  mean  that  she  may  do  either  so  long  as  she  does  not 
do  so  in  public.  So  with  conducting  herself  in  a  virtuous  manner. 
Is  that  in  public  or  in  private,  and  does  it  include  anything  short  of 
unchastity?  As  to  respectability  and  order  they  are  words  of  such 
varying  meaning  that  I  cannot  understand  any  agreement  about  them. 
All  this  makes  me  unable  to  see  any  promise  whatever  made  by  the 
plaintiff  in  this  document,  and  in  any  event  forces  me  to  the  conclu- 
sion that  such  a  promise  is  too  uncertain  to  form  the  consideration 
of  any  legal  agreement.  A  contract  founded  upon  such  an  illusory 
considei'ation  appears  to  me  to  be  as  invalid  as  a  promise  by  a  father 
made  in  consideration  that  his  son  would  not  bore  him:  White  v. 


264  DUNTON   V.    DUNTON.  [CHAP.    I. 

Bluett;^  and  it  is  not  nearly  so  certain  as  an  agreement  by  a  mar- 
ried woman  that  she  would  attend  upon  her  aged  father  and  mother 
as  long  as  they  lived,  and  provide  them  with  necessary  services,  and 
in  consideration  thereof  her  father  should,  when  requested,  transfer 
to  her  his  interest  in  certain  land ;  an  agreement  which  the  late  Mr. 
Justice  Molesworth  considered  void  for  uncertainty:  Shiels  v.  Drys- 
dale.^  It  must  be  remembered  tliat  we  have  not  here  to  consider 
a  case  of  a  plaintiff  being  induced  to  alter  her  position  by  reason  of 
a  promise  made  by  the  defendant.  The  plaintiff  does  not  allege  that 
she  did,  or  refrained  from  doing,  anything  depending  upon  the  de- 
fendant's promise.  If  she  had  stated  that  she  did  not  get  drunk,  as 
she  otherwise  would  have  done,  or  that  she  remained  chaste  or  orderly 
or  respectable  solely  in  consequence  of  the  defendant's  promise,  and 
relying  thereon  she  might,  perhaps,  have  brought  herself  under  a 
different  rule,  but  the  very  suggestion  of  such  a  statement  shows  to 
my  mind  the  impossibility  of  its  ever  forming  the  consideration  for  the 
contract  upon  which  alone  she  sues. 

For  these  reasons  I  find  myself  unable  to  concur  in  the  judgment 
of  the  Court. 

HiGiNBOTHAM,  C.  J.  I  am  of  the  opinion  that  this  agreement  is 
binding,  and  that  it  is  not  nudrivi  pactum^  or  void  for  want  of  con- 
sideration. It  has  been  contended  for  the  defendant  that  the  written 
agreement  discloses  no  consideration  for  the  defendant's  promise  to 
pay  the  plaintiff  6Z.  per  month,  that  his  promise  therefore  was  a  purely 
voluntary  one,  and  performance  of  it  cannot  be  enforced  by  action. 
The  agreement  was  signed  by  the  plaintiff:  The  terms  of  it  clearly 
imply,  in  my  opinion,  a  promise  on  her  part  that  she  will  conduct 
herself  with  sobriety,  and  in  a  respectable,  orderly,  and  virtuous 
manner.  But  it  was  said  that  this  was  only  a  promise  to  do  that 
which  the  plaintiff  was  already  bound  to  do,  and  that  such  a  promise 
does  not  constitute  a  good  consideration.  It  is  true  that  if  a  person 
promises  not  to  do  something  which  he  cannot  lawfully  do  and  which, 
if  done,  would  be  either  a  legal  wrong  to  the  pomisee  or  an  act  for- 
bidden by  law,  such  a  promise  is  no  consideration  for  the  promise 
of  the  other  party  to  the  alleged  contract  founded  on  mutual  prom- 
ises. The  case  of  Jamieson  v.  Renwick,^  and  the  authorities  there 
cited,  support  that  rule.  But  they  also  show  that  a  promise  not  to 
do  or  to  do  something  which  the  promisor  may  lawfully  and  without 
wrong  to  the  promisee  do  or  abstain  from  doing,  is  a  good  considera- 
tion. In  the  present  case  the  plaintiff  was  released  by  the  decree  for 
the  dissolution  of  marriage  from  her  conjugal  obligation  to  the  de- 
fendant to  conduct  herself  with  sobriety,  and  in  a  respectable,  orderly, 
and  virtuous  manner;  and  conduct  of  an  opposite  character  would  not 
necessarily  involve  a  breach  on  her  part  of  any  human  law  other  than 
the  law  of  marriage,  which  had  ceased  to  bind  her.  She  was  legally 
at  liberty,  so  far  as  the  defendant  was  concerned,  to  conduct  herself 
1  23  L.  J.  Ex.  at  p.  37,  per  Parks,  B.  25  Vict.  L.  R.  Eq.  126. 

8  17  Vict.  L.  R.  124. 


SECT,   n.]  DUNTON   V.   DUNTON.  265 

in  these  respects  as  she  might  think  fit,  and  her  promise  to  surrender 
her  liberty  and  to  conduct  herself  in  the  manner  desired  by  the  defend- 
ant constituted,  in  my  opinion,  a  good  consideration  for  his  promise  to 
pay  her  the  stipulated  amount.  I  am  of  opinion,  for  this  reason,  that 
there  was  a  good  legal  consideration  to  support  this  agreement,  and  I 
answer  the  question  accordingly.  The  proper  order  as  to  costs  of  the 
hearing  of  this  case  will  be  that  they  baide  the  event  of  the  action. 

"Williams,  J.  In  my  opinion  there  is  a  consideration  for  the 
agreement  upon  which  the  plaintiff  sues,  and  it  is  binding  upon 
the  defendant  as  long  as  the  plaintiff  observes  her  undertaking, 
necessarily  implied  in  the  agreement,  that  she  will  conduct  herself 
with  sobriety,  and  in  a  respectable,  orderly,  and  virtuous  manner. 
The  plaintiff  signs  this  agreement  and  she  is  bound  by  it,  and  the 
penalty  upon  her,  if  she  fails  to  observe  her  undertaking,  is  that, 
immediately  she  does  fail,  all  benefit  to  her  under  the  agreement 
ceases.  The  defendant's  promise  to  pay  her  the  6^.  per  month  is 
stated  in  the  agreement  itself  to  be  made  "  in  consideration  of  the 
premises,"  and  one  of  those  premises  is  the  plaintiff's  undertaking 
to  conduct  herself  with  sobriety,  and  in  a  respectable,  orderly,  and 
virtuous  manner.  Then,  it  is  said,  this  undertaking  of  hers  is  noth- 
ing, as  it  only  amounts  to  an  undertaking  by  her  to  do  that  which 
she  was  under  a  legal  obligation  to  do.  From  this  proposition  I 
dissent.  She  was  under  no  legal  obligation  to  the  defendant,  or  to 
anyone,  not  to  get  drunk  in  her  own  or  any  friend's  house.  She  was 
under  no  legal  obligation  to  the  defendant,  or  to  any  one,  not  to  con- 
sort with  persons,  male  or  female,  of  bad  moral  character.  She  was 
under  no  legal  obligation  to  the  defendant,  or  to  any  one,  not  to  allow 
a  paramour  to  have  sexual  connection  with  her.  She  was  entitled  in 
these  and  other  respects  to  pursue  her  own  course  of  conduct.  Now, 
turning  to  the  facts  as  gathered  from  the  agreement  and  evidence, 
it  appears  that  the  defendant  had  obtained  a  divorce  from  the  plain- 
tiff, and  that  the  issue  of  their  marriage  had  been  five  young  children, 
all  living  at  the  time  the  agreement  was  made.  It  is  true,  and  it  is 
most  important  to  bear  in  mind,  that  with  the  dissolution  of  the 
marriage  her  conjugal  obligations  to  the  defendant  ceased.  It  was, 
perhaps,  by  reason  of  this  consequence  that  the  defendant  entered 
into  this  agreement  with  the  plaintiff  and  procured  her  to  enter  into 
it  with  him.  It  may  have  been,  and  probably  was,  of  some  moment 
to  the  defendant  to  hold  out  a  substantial  inducement  to  the  plaintiff 
to  agree  to  conduct  herself,  and  to  conduct  herself  in  the  manner 
stipulated  by  himself.  She  had  been  his  wife,  she  was  so  no  longer, 
but  she  still  remained  the  mother  of  his  five  young  children.  Re- 
maining under  no  conjugal  obligations  to  him,  he  probably  deemed 
it  advantageous  and  desirable  that  she,  who  remained  the  mother  of 
his  children,  should  conduct  herself  in  such  a  way  as  not  to  bring 
discredit  upon  her  offspring.  In  effect  he  says  to  her:  "If  j'ou, 
who  now  owe  me  no  duty  as  a  wife,  will  agree  to  my  stipulation,  I 
will,  so  long  as  you  observe  that  stipulation,  pay  you  6/.  per  month." 


268  DUNTON   V.    DUNTON.  [CHAP.  I. 

Thereupon  she  signifies  her  agreement  and  her  assent  to  observe  thai 
stipulation  by  signing  the  agreement.  The  case  of  White  v.  Bluett^ 
is,  in  my  opinion,  not  an  authority  against  the  view  I  have  taken. 
In  that  case,  Pollock,  C.  B. ,  came  to  the  conclusion  that  the  agree- 
ment set  up  by  the  son  was  nudum  pactum,  and  so  no  answer  to  the 
father's  cause  of  action  upon  the  express  ground  that  the  son  had  no 
right  to  complain  of  the  father's  distribution  of  the  property;  for 
the  father  might  make  what  distribution  of  his  property  he  liked,  and 
the  son's  abstaining  from  doing  what  he  had  no  right  to  do  could  be 
no  consideration. 

My  answer  to  the  question  stated  is  that  there  is  sufficient  con- 
sideration to  support  the  agreement  sued  on.'^ 

1  23  L.  J.  Ex.  36. 

2  lu  Jamieson  v.  Renwick,  17  Vict.  L.  R.  124,  126;  Higinbotham,  C.  J,,  delivering 
the  opinion  of  tlie  court,  said  :  — 

"  Tiie  next  ground  of  objection  is  that  this  promise  is  a  voluntary  one,  a  promise 
to  make  a  gift ;  that,  in  fact,  no  consideration  for  making  the  promise  is  shown  bv  the 
instrument,  and  tliat  tlierefore  the  agreement  is  not  one  on  which  an  action  can  be 
brought.  Tlie  agreement  is  an  extremely  peculiar  one,  and  not  easy  of  comprehen- 
sion. It  opens  with  a  recital  that  '  John  Kenwick,  of  liis  own  free  will,  as  and  by  way 
of  gift,  and  subject  to  the  proviso  and  agreement  hereinafter  contained,  doth  agree  to 
pay  to  the  said  .John  Jamieson  the  annual  sum  of  twenty-five  pounds.'  That  promise 
is  subject  to  this  proviso :  '  Provided,  however,  and  it  is  hereby  agreed  that  if  the  said 
John  Jamieson  shall  reside,  attempt,  claim,  or  threaten  to  reside  in  Sandhurst  afore- 
said, or  shall  visit,  annoy,  or  interfere  iu  any  way  with  the  said  John  Renwick,  either 
personally  or  by  letter  or  messenger,  or  shall  claim,  or  attempt  to  claim,  any  interest 
or  right  to  the  land  of  the  said  John  Renwick,  or  to  occupy  the  same,  or  shall,  in  the 
opinion  of  the  said  John  Renwick,  not  conduct  himself  in  a  proper  and  becoming  man- 
ner  as  a  member  of  society,  then  the  said  John  Renwick  shall  be  entitled  to  put  an 
end  absolutely  to  this  agreement,  and  shall  be  at  liberty  to  refuse  any  further  payment 
to  the  said  John  Jamieson.'  This  proviso  constitutes  a  condition  for  the  payment  of 
money  by  the  defendant ;  tlie  fulfilment  of  the  conditions  of  the  proviso  constitutes  the 
promises  made  on  his  part  by  the  plaintiff.  Some  of  these  promises  constitute  a  good 
consideration  for  the  promise  of  the  defendant.  The  first  condition  or  promise  that 
Jamieson  shall  not  reside,  nor  attempt,  claim,  or  threaten  to  reside  in  Sandhurst,  re- 
lates to  an  act  or  acts  which  the  plaintiff  is  at  liberty  to  do  or  not  to  do,  and  the  per- 
formance of  which  would  not  amount  to  any  wrong  done  to  the  defendant.  The  second 
condition,  that  the  plaintiff  shall  not  personally,  or  by  letter  or  messenger,  claim  or 
attempt  to  claim  any  interest  in  defendant's  land,  relates  to  an  act  which  the  plaintiff 
is  at  perfect  liberty  to  do  without  committing  any  wrong.  The  plaintiff  can  advance 
any  legal  claim  wliich  he  is  advised  is  a  good  one.  The  promise  not  to  visit  the  de- 
fendant is  a  valid  promise.  To  annoy  or  interfere  with  the  defendant  is  an  unlawful 
act,  and  therefore  the  promise  to  forbear  from  so  doing  is  not  one  which  constitutes  a 
good  consideration.  The  principles  guiding  the  court  in  cases  like  this  appear  in 
Bracewell  v.  Williams,  L.  R.  2  C.  P.  196.  There  it  was  held  that  a  promise  not  to 
apply  for  costs  under  the  Bankruptcy  Act  was  a  sufficient  consideration  to  support  a 
contract.  Erie,  C.  J.,  says,  at  page  198:  '  The  second  count  is,  I  think,  also  bad; 
it  really  amounts  to  this  :  in  consideration  that  I  do  not  abuse  the  process  of  the  court 
for  a  purpose  other  than  that  for  which  it  was  intended,  viz.,  the  recovery  of  my  debt 
by  using  it  as  means  of  exposure  of  you,  you  will  perform  your  promise.  The  consid- 
eration, therefore,  is  really  the  abstaining  from  an  abuse  of  the  process  of  the  court.' 
A  promise  that  a  person  will  not  do  what  he  lawfully  may  is  a  good  consideration. 
But  a  promise  not  to  do  what  is  unlawful  does  not  constitute  a  good  consideration. 
In  the  present  case  we  think  that  there  are  suflScient  promises  constituting  a  good  con- 
sideration to  support  the  promise  made  by  the  defendant.  A  promise  not  to  annoy  is 
nugatory." 


SECT,    n.]  SEWAKD   &    SCALES   V.   MITCHELL.  267 


SEWARD   &   SCALES   v.   MITCHELL. 

Tennessee  Supreme  Court,  April  Term,  1860. 
[Reported  in  1  Coldwell,  87.] 

This  cause  was  tried  at  the  November  Term,  1859,  before  Judge 
Williams.     Verdict  and  judgment  for  plaintiff.     Defendant  appealed. 

T.  J.  Freeman,  for  plaintiffs  in  error. 

M.  H.  Hill,  for  defendant  in  error. 

Caruthers,  J.,  delivered  the  opinion  of  the  court:  — 

On  the  16th  Oct.,  1856,  Mitchell  sold  to  Seward  &  Scales,  for  the 
consideration  of  $8,596.50,  a  tract  of  land  in  the  county  of  Gibson, 
described  in  a  deed  of  that  date,  b}'  metes  and  bounds,  "  containing  521 
acres,  being  a  part  of  a  5,000  acre  tract  granted  to  George  Dougherty, 
and  bounded  as  follows,"  &c. 

The  title  is  warranted  with  the  usual  covenants,  but  nothing  more 
said  about  the  grants  than  what  is  above  recited. 

Some  time  after  the  deed  was  made,  the  parties,  differing  as  to  the 
quantity  of  land  embraced  in  the  tract,  made  an  agreement  that  it 
should  be  surveyed  by  Gillespie,  and  if  there  were  more  than  five  hun- 
dred and  twenty-one  acres,  the  vendees  should  pay  for  the  excess  at 
the  rate  of  $16.50  per  acre,  that  being  the  price  at  which  the  sale  was 
made,  and  if  less,  then  the  vendor  should  pay  for  the  deficiency,  at  the 
same  rate.  It  turned  out  that  there  was  an  excess  of  fifty-seven  acres, 
and  the  tract  eruliraced  in  the  deed  was  five  hundred  and  seventy-eight 
acres,  instead  of  five  hundi'ed  and  twenty-one,  as  estimated  in  the  sale. 
For  this  excess,  the  present  suit  was  brought,  and  recovery  had,  for 
$1,079. 

It  is  objected  here  that  the  court  below  erred  in  refusing  to  charge, 
as  requested,  that  the  agreement  sued  upon  was  void  for  want  of  a 
writing,  and  because  there  was  no  consideration  for  the  promise. 

1.  The  contract,  or  promise  sued  upon,  is  not  for  the  sale  of  land, 
so  as  to  require  a  writing,  under  the  Statute  of  Frauds. 

The  sale  had  already  been  reduced  to  writing.  This  was  a  sub- 
sequent collateral  agreement  in  relation  to  the  price,  which  was  bind- 
ing by  parol,  and  to  which  the  Statute  can  have  no  application  whatever. 
This  is  too  i)lnin  for  argument. 

2.  There  is  more  plausibility  in  the  second  objection,  that  there  was 
no  sufficient  consideration  for  the  promise.  But  this  is  also  untenable. 
The  argument  is,  that  the  deed  embraced  the  whole  tract,  and  passed  a 
perfect  title  to  the  extent  of  the  boundaries,  and  consequently  there  was 
nothing  passing  as  a  consideration  for  the  new  promise,  that  the  party 
did  not  own  before  h\  a  perfect  legal  right. 

It  is  true,  if  the  sale  was  hy  the  tract  and   not   by  the   acre,  as 


268  BARNABD   V.   SIMONS.  [CHAP.  I. 

appears  from  the  deed,  and  no  stipulations  as  to  quantitj',  that  the  title 
was  good  for  the  whole  and  covered  the  excess.  But  if  the  sale  was 
not  in  gross,  but  by  the  acre,  and  the  recitation  in  the  deed  would  not 
be  conclusive  in  a  court  of  equity  on  that  point  if  the  fact  could  be 
shown  to  be  otherwise,  then  there  would  be  mutual  remedies  for  an 
excess  or  deficiency  in  proper  cases,  as  we  held  in  Miller  v.  Bents, 
4  Sneed,  and  a  more  recent  case  ;  but  independent  of  that,  and  taking 
it  to  have  been  purel}'  a  sale  in  gross,  and  both  parties  desiring  to  act 
justly,  and  being  of  different  opinions  as  to  the  quantity,  mutually  agreed 
to  abide  b3-  an  accurate  survey  to  ascertain  which  was  bound  to  pay, 
and  recover  from  the  other,  and  what  amount,  we  see  no  good  reason  in 
law  or  morals  why  such  an  agreement  should  not  be  binding  upon  them. 
The  case  of  Howe  v.  O'Malley,  1  Murphcy's  L.  and  Eq.  R.,  287,  is 
precisel}'  in  point.  The  court  there  held  that  a  promise  to  refund  in 
case  of  deficiency  is  a  good  consideration  for  a  purpose  to  pay  for  nuy 
excess  over  what  is  called  for  in  the  deed,  —  that  such  mutual  promises 
are  sufficient  considerations  for  each  other. 

The  case  of  Smith  v.  Ware,  13  Johns.  Rep.  259,  which  is  supposed 
to  conflict  with  this,  is  entirely  different;  "there  was  no  mutuality" 
because  the  promise  sued  upon  was  to  pay  for  the  deficiency,  without 
any  obligation  on  the  other  party  to  pay  for  an  excess,  if  an}'  there 
had  been. 

The  principle  of  the  North  Carolina  case  commends  itself  to  our 
approbation,  because  of  its  equit}'  and  justice. 

Without  further  citation  of  authorities  we  are  satisfied  to  hold  that 
the  promise  in  this  case  was  binding  upon  the  defendant,  as  his  Honor 
charged,  and  therefore  affirm  the  judgment.^ 


BARNARD   v.   SIMONS. 
Writ  of  Error  at  Serjeants'  Inn,  Michaelmas  Term,  1616. 

[^Reported  in  1  Rolle's  Abridgment,  26,  placitum  39.] 

If  a.  makes  a  void  assumpsit  to  B.,  and  afterwards  a  stranger  comes 
to  B.,  and,  in  consideration  that  B.  will  relinquish  the  assumpsit  made 
to  him  by  A.,  he  promises  to  pa}^  him  10^.,  this  is  not  a  good  consider- 
ation to  charge  him,  because  the  first  assumpsit  was  void.* 

1  March  v.  Pigott,  5  Burr.  2802;  Baruum  v.  Barnuin,  8  Conn.  469;  Howe  v. 
O'Mally,  1  Murphey,  287  ;  Supreme  Assembly  v.  Campbell,  17  R.  I.  402,  ace.  See  also 
Beckley  v.  Newland,  2  P.  Wms.  182 ;  McElvain  v.  Mudd,  44  Ala.  48  ;  Curry  v.  Davis, 
44  Ala.  171  ;  Pool  v.  Docker,  92  111.  .501.     But  see  contra  Smith  v.  Knight,  88  la.  2.57. 

2  Faruham  v  O'Brien,  22  Me.  475;  Silvernail  v.  Cole,  12  Barb.  685;  Hooker  v. 
De  Palos,  28  Ohio  St.  257 ;  Shuder  v.  Newby,  85  Tenn.  348,  ace. 


SECT.   II.]  LOYD   V.   LEE.  269 

BID  WELL   V.    CATTON. 
Hilary  Term,  1618. 

[Reported  in  Hobart,  216.] 

BiDWELL,  an  attorne}',  brought  an  action  of  the  case  against  Catton, 
executor  of  Reve,  and  counted  that,  whereas  he  had  in  Michaelmas 
Term,  14  Jac. ,  prosecuted  an  attachment  of  privilege  against  Reve  the 
testator,  returnable  in  Hil.  Term,  the  testator  knowing  of  it,  in  con- 
sideration that,  at  his  request,  the  plaintiff  would  forbear  to  prosecute 
the  said  writ  any  further  against  the  said  testator,  the  testator  did 
promise  to  pay  him  50^.,  and  then  avers,  &c.  And  after  a  verdict  it 
was  excepted  in  arrest  of  judgment : 

First,  that  it  was  not  alleged  that  the  plaintiff  had  any  just  cause  of 
action. 

Secondly,  that  this  action  still  remains.   .   .   . 

But  the  Court  nevertheless  gave  judgment :  Foi  first,  suite  are  not 
presumed  causeless,  and  the  promise  argues  cause,  in  that  he  desired  to 
stay  off  the  suit.  Queers^  if  the  defendant  had  averred  that  there  was 
no  cause  of  suit. 

Secondly,  though  this  did  not  require  a  discharge  of  the  action,  yet 
it  requires  a  loss  of  the  writ,  and  a  delay  of  the  suit,  which  was  both 
benefit  to  the  one,  and  loss  to  the  other.  .   .  . 


LOYD   V.   LEE. 
Before  Pratt,  C.  J.,  at  Nisi  Prius,  1718. 

{Reported  in  1  Strange,  94.] 

A  MARRIED  woman  gives  a  promissory  note  as  a  feme  sole  ;  and  after 
her  husband's  death,  in  consideration  of  forbearance,  promises  to  pay  it. 
And  now,  in  an  action  against  her,  it  was  insisted  that,  though,  she 
being  under  coverture  at  the  time  of  giving  the  note,  it  was  voidable 
for  that  reason,  yet  by  her  subsequent  promise,  when  she  was  of  abil- 
ity to  make  a  promise,  she  had  made  herself  liable,  and  the  forbearance 
was  a  new  consideration.  But  the  C.  J.  held  the  contrary,  and  that 
the  note  was  not  barely  voidable,  but  absolutely  void  ;  and  forbearance, 
where  originally  there  is  no  cause  of  action,  is  no  consideration  to  raise 
an  assumpsit.  But  he  said  it  might  be  otherwise  where  the  contract 
was  but  voidable.     And  so  the  plaintiff  was  called.^ 

1  Other  early  English  decisions  holding  forbearance  of  a  groundless  claim  insuffi- 
cient consideration  are  collected  in  12  Harr.  L.  Rer.  517,  n.  2. 


270  ATKINSON   V.   SETTREE.  [CHAP.   I. 


ATKINSON  V.   SETTREE. 
Ik  the  Common  Pleas,  May  7,  1744. 

[Reported  in   Willes,  482.] 

This  was  a  special  action  on  the  case.  The  first  count  stated  that 
on  the  11th  of  December,  in  the  16th  year,  &c,,  at  Westminster,  and 
within  the  jurisdiction  of  the  court  of  our  Lord  the  King  of  his 
palace  of  Westminster,  the  plaintiff,  in  order  to  procure  the  payment 
of  the  sum  71.  18s.,  which  Catharine  Grimaldi  then  owed  him,  by  a 
certain  writ  dated  the  10th  of  December  in  the  same  year,  duly  issued 
out  of  the  Court  of  Record  of  our  said  Lord  the  King  of  his  palace  of 
Westminster,  at  the  plaintiff's  request,  and  directed  to  the  bearers  of 
«he  verge  of  the  household,  &c.,  officers  and  ministers  of  the  said  court, 
commanding  them  to  take  the  said  Catharine  by  her  body,  if  she 
should  be  found  within  the  juiisdiction  of  that  court,  and  have  her  at 
the  then  next  court,  to  be  holden  on  Friday  the  17th  of  December 
then  next,  to  answer,  &c.,  procured  the  said  Catharine  to  be  arrested, 
&c.,  and  to  be  there  kept  and  detained  in  prison,  &c.  ;  that  afterwards 
on  the  said  11th  of  December,  in  consideration  that  the  plaintiff  at 
request  of  the  defendant  undertook  to  release  and  discharge  the  said 
Catharine  from  her  said  imprisonment,  the  defendant  promised  to  pay 
the  plaintiff  71.  18s.,  and  also  the  costs  and  charges  by  the  plaintiff 
expended  in  that  suit;  with  an  averment  that  those  costs  amounted  to 
15s.  Ad.,  and  that  the  plaintiff  at  the  defendant's  request  discharged 
the  said  Catharine  from  her  said  imprisonment.  There  was  a  second 
count  in  the  declaration,  which,  though  it  varied  from  the  first  in 
several  particulars,  was  equally'  open  to  the  objection  afterwarda 
made  to  the  first.  There  was  also  a  thii'd  count  for  money  had  and 
received. 

The  defendant  pleaded  the  general  issue,  and  at  the  trial  the  plaintiff 
obtained  a  verdict  on  all  the  counts,  with  81.  13s.  4c?.  damages. 

A  motion  was  made  in  Michaelmas  Term,  1743,  in  arrest  of  judg- 
ment, which  was  opposed  this  day  by  Prime,  King's  Serjt.,  and  Wynne, 
Serjt.,  and  supported  by  Skinner^  King's  Serjt.,  and  Draper,  Serjt., 
and  at  a  subsequent  time  The  rule  was  discharged} 

^  The  grounds  of  the  judgment  do  not  appear  in  Lord  Chief  Justice  Willes's 
books ;  but  the  following  account  is  taken  from  Mr.  J.  Abney's  MS.:  "  Skinner  and 
Draper,  Serjeants,  moved  in  arrest  of  judgment.  First,  it  does  not  appear  that  any 
plaint  was  levied,  and  without  that  a  capias  ought  not  to  issue.  Secondly,  it  does 
not  appear  that  the  cause  of  action  in  the  court  below  arose  within  the  jurisdiction, 
and  tlien  the  arrest  was  illegal,  and  there  was  no  good  consideration  to  support  the 
promise.  1  Rol.  Abr.  809;  2  Mod.  30,  197  ;  3  Lev.  23;  1  Saund.  74;  2  Ld.  Raym. 
1310.  This  is  a  void  arrest,  and  therefore  the  discharge  is  no  consideration.  Godb. 
368. 

"Prime  and  Wynne,  Serjts.,  for  the  plaintiffs,  insisted  that  to  support  this  action 


SECT,    n.]  JONES   V.   ASHBURNHAM.  271 


JONES   V.   ASHBURNHAM   and   NANCY,   his   Wife. 
In  the  King's  Bench,  Jandary  31,  1804. 

[^Reported  in  4  East,  455.] 

The  plaintiff  declared  that,  whereas  one  S.  F.  Bancroft,  since 
deceased,  at  the  time  of  his  death  was  indebted  to  him  in  58^,  for 
goods  before  that  time  sold  and  delivered  to  the  deceased,  whereof 
the  defendant  Nancy  had  notice ;  and  thereupon,  after  the  death  of 
Bancroft,  the  defendant  Nancy,  before  her  intermarriage  with  the 
other  defendant,  Ashburnham,  in  consideration  of  the  premises,  and 
also  in  consideration  that  the  plaintiff,  at  the  special  instance  and 
request  of  the  defendant  Nancy,  would  forbear  and  give  daj^  of  pay- 
ment of  the  said  58/.  as  aftermentioned,  she  the  said  Nancy,  by  a  note 
in  writing  signed  b}'  her  according  to  the  form  of  the  statute,  &c.,  on 
the  20th  of  March,  1801,  undertook  and  promised  the  plaintiff  to  dis- 
charge the  said  debt  so  due  and  owing  to  him  in  a  reasonable  time, 
and  to  send  him  20Z.  in  part  pajTnent  in  the  Juh'  following ;  and 
although  the  same  July  is  long  since  passed,  during  which  the  said 
Nancy  continued  sole,  and  a  reasonable  time  elapsed  for  the  pay- 
ment of  the  whole  58/.,  according  to  the  tenor  and  effect  of  the  said 
promise  ;  and  though  the  plaintiff  has  always,  from  the  time  of  making 
the  said  promise,  hitherto  forborne  and  given  day  of  pa_>Tnent  of  the 
said  debt,  whereof  the  defendant  Nancy  before  her  interaiarnage,  and 
both  the  ilL'feiulants  .since  iiw.w  iuLcnnurriage,  have  had  due  notice,  yet 
the  defendants  have  respectively,   &c.,  refused  to  pay,   «fec.     There 

in  the  superior  court  it  was  iuimatcrial  whether  oi  not  tliere  were  a  cause  of  action 
in  the  inferior  court,  or  whetlier  or  not  the  court  helow  had  a  jurisdiction.  The  decla- 
ration sets  out  the  writ  diily  i.ssued,  commanding  tlie  bearer  of  the  virge  to  arrest  the 
party  if  found  within  the  jurisdiction,  and  there  to  detain  her.  Salk.  201,  2.  And 
the  case  of  Peacock  v.  Roll,  in  1  Saund.  74,  relates  only  to  cases  determined  in  tlie 
inferior  court  and  brought  up  by  error.  The  case  of  Randal  v.  Harvey  is  better 
reported  in  Palm.  394,  than  in  Godb.  358.  If  the  plaintiff's  consent  were  necessary 
to  release  Grimaldi,  and  the  officer  could  not  discharge  her  without,  then  there  is  a 
good  consideration  to  support  the  promise.  They  argued  that  it  was  not  necessary 
that  the  arrest  and  detainer  should  be  legal  in  order  to  make  a  good  consideration ; 
and  for  that  purpose  they  cited  1  Rol.  Abr.  12,  pi.  12  ;  1  Rol.  Abr.  19,  pi.  6 ;  Hob. 
216  ;  Sir  T.  Raym.  204 ;  1  Rol.  Abr.  27,  pi.  47  ;  Sty.  459.  Besides,  this  is  after  a  ver- 
dict, it  having  been  proved  to  the  satisfaction  of  Mr.  J.  Abney,  who  tried  the  cause, 
that  vhe  arrest  and  promise  were  within  the  jurisdiction  of  the  Palace  Court.  1  Sid. 
3u.  If  a  judgment  be  irregular  or  erroneous,  to  forbear  to  sue  out  execution  is  a 
good  consideration  to  support  an  assumpsit.  2  Rol.  Rep.  495 ;  Yelv.  25 ;  1  Ventr. 
120;  2  Lev.  3;  1  Lev.  257;  1  Sid.  392;  Sir  T.  Raym.  211;  Poph.  183;  1  Sid.  89; 
1  Saund.  229;  and  2  Ld.  Raym.  796. 

"  The  Court  inclined  to  think  that  if  the  party  were  under  an  illegal  arrest  or 
imprisonment  the  promise  was  not  good ;  but  the  question  was  whether,  as  this  was 
after  a  verdict,  it  did  not  now  sufficiently  appear  that  the  writ  duly  issued  below,  and 
consequently  that  the  suit  arose  within  the  jucisdiction ;  and  that  this  case  greatly 
differed  from  writs  of  error  on  judgments  in  the  inferior  court  where  nothing  shall  h<i 
intended.  But  they  ordered  it  to  be  spoken  to  again;  and  afterwards  the  plaintiS 
had  Judgment." —  MS.,  Abney,  J. 


272  JONES   V.    ASHBURNHAM.  [cHaP.   I. 

■vere  other  counts  in  substance  the  same  ;  one  aLeging  the  forbearance 
u)  he  till  Jul}',  &c.  To  all  which  there  was  a  demurrer,  assigning  for 
special  causes  that  it  is  not  alleged  in  the  declaration  from  whom  the 
said  sum  of  58^.  therein  mentioned  was  due  and  owing  to  the  plaintiff 
at  the  time  when  the  defendant  Nancy  is  supposed  to  have  made  the 
promise  and  undertaking  mentioned,  or  that  any  persons  or  jierson 
>*ere  or  was  then  liable  to  pay  the  plaintiff  that  sum ;  and  that  it  is  noi 
alleged  to  whom  the  plaintiff  hath  forborne  and  given  day  of  pajTuent 
of  the  said  58/.  ;  and  that  the  declaration  does  not  disclose  any  legal 
and  sufficient  consideration  for  the  supposed  promise  ;  nor  does  it 
thereby  appear  that  the  plaintiff  has  any  good  cause  of  action  against 
the  defendants,  &c. 

Mdrryat,  in  support  of  the  demurrer. 

Jervis,  contra. 

LoED  Ellenborough,  C.  J.  The  way  in  which  I  am  disposed  to 
consider  this  case  will  break  in  upon  no  recognized  rule  of  law,  nor  on 
the  plain  sense  of  what  was  laid  down  by  Mr.  Justice  Yates  in  the 
case  of  Pillans  v.  Van  Mierop.  It  is  a  known  rule  of  law,  that  to  make 
a  promise  obligatory  there  must  be  some  benefit  to  the  party  making  it, 
or  some  detriment  to  the  party  to  whom  il  is  made  ;  otherwise  it  is 
considered  as  nudum  pactum  and  cannot  be  enforced.  T  do  not  say 
that  the  opinion  which  I  have  formed  will  not  break  in  on  any  of  the 
cases  which  have  been  cited,  but  it  entrenches  on  no  general  rule  ;  and 
in  order  to  show  that,  I  will  examine  the  rule  referred  to  as  laid  down 
by  Mr.  Justice  Yates,  and  see  how  it  applies  to  the  present  case. 
He  says  that  "  an}'  damage  to  another,  or  suspension  or  forbearance  of 
his  right,  is  a  foundation  for  an  undertaking,"  &c.  Now  how  does  the 
plaiLtiff  show  an}'  damage  to  himself  by  forbearing  to  sue,  when  there 
was  no  fund  which  could  be  the  object  of  suit ;  where  it  does  not 
apjxiar  that  any  person  in  rerum  naturd  was  hable  to  be  sued  by  him? 
No  right  can  exist  in  this  vague,  abstract,  and  indefinite  way.  Right  is 
a  correlative  term  :  there  must  be  some  object  of  right,  some  object  of 
suit,  some  party  who,  in  respect  of  some  fund  or  some  character 
known  in  the  law,  is  liable ;  otherwise  there  cannot  be  said  to  be  any 
right.  Has  there  been  then  any  suspension  of  the  plaintiff's  right? 
Now  unless  a  right  is  capable  of  being  exercised,  unless  it  can  be  put 
in  force,  there  can  be  no  suspension  of  it.  And  that  it  could  have  been 
exercised  or  put  in  force  but  for  the  promise  made  by  the  defendant,  is 
not  shown.  Then  what  forbearance  is  shown  ?  It  must  be  a  forbear- 
ance of  a  right  which  may  be  enforced  with  effect.  It  is  true  thai  h 
promise  may  be  binding  though  there  may  be  no  actual  benefit  result- 
ing to  the  party  making  it,  because  it  is  enough  if  the  plaintiff  may  be 
damaged  by  it ;  but  it  does  not  appear  here  that  the  forbearance  could 
produce  any  detriment  to  the  plaintiff.  It  does  not  therefore  appear  that 
Mr,  Justice  Yates  laid  down  any  doctrine  which  does  not  square  with  the 
jjeneral  received  I'ule  of  law,  that  to  sustain  a  promise  there  must  be  a 


SECT,   n.]  JONES   V.   ASHBURNHAM.  273 

benefit  on  the  one  hand  or  a  detriment  on  the  other.  But  here,  vvhethi  r 
there  were  any  representative  or  any  funds  of  the  original  debtor  does 
not  appear.  Then,  as  to  the  cases  cited,  that  of  Rosyer  v.  Langdale  is 
strong  to  the  purpose  ;  for  it  was  there  decided  that  a  promise,  in  con- 
sideration that  the  plaintitf  would  forbear  suit  until  the  defendant  had 
taken  out  letters  of  administration,  was  without  foundation,  because  it 
did  not  aj^pear  that  the  party  was  liable  before  administration  taken 
out.  And  this  was  righth"  determined  ;  for  forbearance  of  an  unfounded 
suit  is  no  forbearance.  But  this  case  is  attempted  to  be  met  by  that  of 
Hum-;-  V.  Ilinton  in  the  same  book,  where  a  promise  by  the  mother  of 
an  intestate  indebted  to  the  plaintiff,  that  if  he  would  stay  for  the 
money  till  a  given  day  she  would  pay  it,  was  sustained.  That,  how- 
ever, was  after  verdict ;  and  that  is  material  to  be  attended  to,  because 
it  might  be  presumed  to  have  been  proved  that  the  defendant  had  so 
intermeddled  with  the  intestate's  effects  as  to  make  herself  liable  as 
executrix  de  son  tort,  and  had  funds  of  the  deceased  in  her  hands  for 
which,  but  for  the  promise  made,  she  might  have  been  sued  in  that 
character.  But  no  such  intendment  can  be  made  here.  The  case  of 
Quick  V.  Copleton  is  also  relied  on.  That,  too,  was  after  verdict ;  and 
it  was  moved  in  arrest  of  judgment  for  want  of  consideration.  I  think 
that  even  after  verdict  that  declaration  would  be  bad,  being  vicious  on 
the  face  of  it.  It  is  stated  that  the  defendant's  late  husband  was 
indebted  to  the  plaintiff,  and  that  she  (not  stating  her  to  be  clothed 
with  an}'  representative  character),  about  to  come  to  London,  and 
being  in  fear  to  be  arrested  by  the  plaintiff,  promised,  &c.  Now  an 
attempt  to  impose  upon  a  person  an  unlawful  ten'or  (and  the  threaten- 
ing of  an  unlawful  suit  is  as  bad)  can  never  be  a  good  consideration 
for  a  promise  to  pa}' ;  yet  that  ground  is  insisted  on  b}'  the  Chief  Jus- 
tice. And  as  to  the  case  there  cited  by  him,  of  a  mother  wlio  prom- 
ised to  pa}'  on  forbearance  of  the  plaintiff  to  arrest  the  dead  body  of 
her  son,  which  she  feared  he  was  about  to  do,  it  is  contrar}'  to  every 
principle  of  law  and  moral  feeling.  Such  an  act  is  revolting  to  human- 
ity, and  illegal ;  and  therefore  any  promise  extorted  by  the  fear  of  it 
could  never  be  valid  in  law.  It  might  as  well  be  said  that  a  promise, 
in  consideration  that  one  would  withdraw  a  pistol  from  another's  breast, 
could  be  enforced  against  the  party  acting  imder  such  unlawful  terror. 
Here,  there  being  no  consideration  of  beneht  to  the  defendant,  or  of 
detriment  or  possibihty  of  detriment  to  the  plaintiff,  shown  by  him  on 
the  face  of  the  declaration,  and  this  coming  on  upon  demurrer,  where 
nothing  can  be  intended  as  it  ma}'  after  verdict,  I  am  clearly  of  opinion 
that  the  declaration  is  bad. 

Judgment  for  the  defendant} 

1  Gbose,  Lawrence,  and  Le  Blanc,  JJ.,  delivered  concurring  opinions. 


VOL,   I.  — 18 


274  LONGKIDGE  V.   DOIIVILLE,  [CHAP.   T. 

LONGRIDGE  and  Others  v.  DORVILLE  and  Another. 
In  the  King's  Bench,  October  29,  1821. 

[Re])orted  in  6  Bamewall  Jf  Alderson,  117.] 

Declaration  alleged,  "that  before  the  making  of  the  promise,  &c.. 
a  certain  ship  called  the  Carolina  Matilda  had  then  lately'  in  a  certain 
place,  to  wit,  in  the  river  Thames,  to  wit,  at,  &c.,  run  foul  of  a  certain 
other  ship  called  the  Zenobia,  whereby  the  said  last-mentioned  ship 
had  received  great  damage.  And  the  said  last-mentioned  ship  having 
received  such  damage  in  consequence  of  being  so  run  foul  of  as  afore- 
said, the  plaintiffs  being  the  agents  in  that  behalf  of  one Symonds, 

the  owner  of  the  Zenobia,  and  the  defendants  being  the  agents  in 
that  behalf  of  the  owners  of  the  Carolina  Matilda,  the  foraier,  as  such 
agents,  detained  the  Carolina  Matilda  till  the  ownei-s  of  the  said  last- 
mentioned  ship  should  have  made  good  to  thoni  the  damage  so  done 
to  the  Zenobia."  It  then  stated,  "  that  in  consequence  of  such  deten- 
tion, the  defendants  undertook  that  they  would,  on  the  plaintiffs' 
renouncing  all  claims  on  the  Carolina  Matilda,  and  on  proving  the 
amount  of  the  damages  sustained  b}'  the  Zenobia,  indemnify  the  plain- 
tiffs for  an}'  sum  not  exceeding  180/.,  the  exact  amount  to  be  ascer- 
tained when  the  said  latter  ship  should  have  been  repaired  ; "  and  then 
alleged  that,  in  consequence  of  such  undertaking,  the  plaintiffs  did 
renounce  all  claim  on  the  Carolina  IMatilda,  and  did  permit  and  allow 
her  to  proceed  on  her  vo^-age,  and  that  the  Zenobia  had  been  repaired, 
and  that  the  amount  of  such  repairs  was  ascertained.  There  were  also 
the  common  counts,  and  the  defendants  pleaded  the  general  issue. 
The  cause  was  tried  before  Abbott,  C.  J.,  at  the  Sittings  after  Easter 
Term,  1820,  when  a  verdict  was  found  for  the  plaintiffs,  subject  to  the 
opinion  of  this  Court  upon  the  following  case  :  — 

The  Norwegian  ship,  called  the  Carolina  Matilda,  on  her  vo3-age  to 
Norwa}',  in  sailing  down  the  river  Thames  in  November  last,  ran  foul 
of  the  ship  called  the  Zenobia,  then  l^ing  at  anchor,  and  in  conse- 
quence of  which  the  latter  ship  sustained  considerable  damage.  The 
plaintiffs,  acting  as  the  agents  of  Mr.  R.  Symonds,  the  owner  of  the 
Zenobia,  instituted  a  proceeding  in  the  High  Court  of  Admiralty 
against  the  ship  Carolina  Matilda,  to  compel  her  owners  to  make  goo(i 
the  damages  sustained  b}'  the  Zenobia  in  consequence  of  being  so  run 
foul  of.  Process  was  issued  against  the  Carolina  Matilda,  under  which 
she  was  arrested  at  Gravesend  on  the  22d  November  last,  and  on  the 
twenty-fourth  da^'  of  the  same  month  the  defendants  wrote  a  letter 
to  the  plaintiffs,  of  which  the  following  is  a  copy :  — 

Messrs.  Lomgriuge,  Baenktt,  and  Hodgson. 

Gentlemen,  —  In  consequence  of  your  having  detained  the  Norway  ship 
Carolina  Matilda  till  the  owners  make  good  to  you  the  damage  done  to  the 


SECT. 


n.] 


LONGRIDGE   V.   DORVILLE. 


275 


Zenobia,  bound  to  Smyrna,  we  hereby  engage,  on  your  renouncing  all  claims 
on  the  said  ship  Carolina  Matilda,  and  on  proving  the  amount  of  damages  sus- 
tained by  the  Zenobia,  to  indemnify  you  for  any  sum  not  exceeding  180/.,  the 
exact  amount  to  be  ascertained  when  the  Zenobia  is  repau-ed. 

The  defendants  were  the  agents  of  the  owners  of  the  Carolina 
Matilda ;  and  upon  the  receipt  of  this  letter  the  plaintiffs  withdrew 
proceedings  in  the  Admiralty  Court,  and  the  officer,  then  in  possession 
of  the  Carolina  Matilda,  was  then  also  withdrawn,  and  such  possession 
delivered  up  to  the  defendants,  acting  on  behalf  of  her  owners.  The 
Zenobia  had  been  since  repaired,  and  the  amount  of  damages  sustained 
by  her  had  been  ascertained.  At  the  time  the  Carolina  Matilda  sailed, 
and  while  she  was  proceeeding  down  the  river  and  ran  foul  of  the 
Zenobia,  she  had  the  regular  Trinity  House  pilot  aboard,  who  had 
been  placed  there  by  the  defendants. 

Puller,  for  the  plaintiff.  It  is  not  necessary  to  consider  the  question 
whether  the  owners  of  the  Carolina  are  liable  for  the  damage  dnnp  tn 
the  z!enobia,  underthe  circumstances  of  the  case ;  for  the  defendants 
have  made  themselves  liable  by  an  express  promise,  founded  upon_a 
good  cohsicteration.  The  plaintiffs  agree  to  release  the  ship,  which 
thej'  might  otherwise  have  detained  until  bail  was  given ;  and  the 
defendants  agree  to  pa}^  a  stipulated  sum  by  way  of  damage  ;  waiving 
all  question  as  to  the  legal  liability  of  the  owners.  That  might  be 
considered  as  doubtful,  there  ha\'ing  been  contradictory  decisions.^ 
The  defendants,  or  their  principals,  therefore,  have  obtained  a  benefit 
by  the  immediate  release  of  the  ship  ;  and  that  constitutes  a  good  con- 
sideration for  the  promise  laid  in  the  declaration. 

F.  Pollock,  contra.  There  is  no  sufficient  consideration  for  the 
promise  in  the  declaration,  because  the  plaintiffs  had  no  ground  for 
instituting  the  suit  in  the  Admiralt}'  Court  against  the  Carolina.  The 
question  whether  the  defendants  are  liable  upon  their  undertaking 
must  depend  upon  this,  whether  the  owners  were  liable  for  the  injury, 
the  ship  at  the  time  having  on  board  a  pilot,  as  required  by  the  act  of 
parliament.  If  they  were  not  liable,  the  plaintiff  had  no  right  to  insti- 
tute the  suit  in  the  Admiralty  Court ;  and  the  forbearance  of  a  suit^ 
tt]l£l£.>'a-^»m4vUia_japtJiaLii(i^  is  not  a_good  consideration.  Toole}'  v. 
Windham'^  and  King  v.  Hobbs*  are  authorities  in  point. 

Abbott,  C.  J.    ^Ijim  of  oj)inion  that_^there  is_a_sufficientjconsidera- 
"  ^tlie  pxomis^^|||withoutJn^^ 

circumstances  of  the  case.     It 


tjon.  in  this 
owner§^X/U 

appears  that  a  suit  GacTBeen  Instituted  by  th^pTamtiffs  in  the  Comt  of 
Admiraltj'  against  the  Carolina  Matilda,  to  compel  her  owners  to  make 
good  the  damage  done  by  her  running  foul  of  another  vessel.  The 
ship  might  have  been  redeemed  from  that  suit  by  the  defendants'  giv- 
ing bail  that  proper  care  should  be  taken  of  the  ship,  und  that  those 


»  Neptune  the  Second,  1  Dodson,  Adin.  R.  467 ;  Ritchie  v.  Bowsfield,  7  Ta'int,  30fl 
•  Cro.  Eiiz.  20G  '  Yelv.  2o. 


276  LONGRLDGE  V.  DORVILLE.  [CHAP.  I. 

on  board  her  should  not  leave  the  kingdom  until  means  were  taken  to 
secure  that  evidence  which  would  enable  the  judge  to  decide  the  suit , 
and  the  plaintiffs  might  have  insisted  on  such  bail.  The  defendants, 
as  agents  for  the  foreign  owners  of  the  ship,  write  a  letter,  in  which 
they  engage,  on  the  plaintiffs'  renouncing  all  claims  on  the  ship,  and 
on  proving  the  amount  of  damages  sustained  by  the  Zenobia,  to  indem- 
nify them  for  an}'  sum  not  exceeding  180/.,  the  exact  amount  to  be 
ascertained  when  the  Zenobia  is  repaired.  Now  the  plain  meaning  of 
that  engagement  appears  to  me  to  be  this :  Release  the  ship,  and  we 
will  waive  all  questions  of  law  and  fact,  except  the  amount  of  damage  ; 
we  will  paj'  you  180/.,  if  the  damage  done  amounts  to  that  sum.  The 
plaintiffs,  by  not  insisting  upon  the  bail  required,  therefore  relin- 
quished a  benefit  which  they  might  have  had,  if  the  law  had  been  with 
them.  The  law  might  fairly  l^e  considered  as  doubtful,  for  there  had 
been  contradictory  decisions  on  the  subject ;  and  the  parties  agree  to 
put  an  end  to  all  doubts  on  the  law  and  the  fact,  on  the  defendants' 
engaging  to  pay  a  stipulated  sum.  I  am  of  opinion  that  this  case  is 
distinguishable  from  those  cited  in  argiunent,  inasmuch  as  in  this  case 
the  law  was  doubtful,  and  the  parties  agreed  to  waive  all  questions  of 
law  and  fact.  I  am  therefore  of  opinion  that  the  plaintiff  is  entitled 
to  recover, 

Bayley,  J.     I  am  of  the  same  opinion.     "Wjiere  a  cause  is  depending,  > 
it  is  competent  toaparty  to  refer  the  questions  or^abilitjiL  and  _damr 
age  jomtl}',  or  to  acknowledgP!  his  |iabihty,  and  refer  the  question  of   , 


d^mage"oulyj~aITd1inThis  case,  I  think,  the  effect  of  the  agreement  is, 
that  they,  the  defendants,  acknowledge  the  liability  of  the  owners,  and, 
in  consideration  of  the  plaintiffs  releasing  the  ship,  the}'  agree  to  refer 
the  question  as  to  the  amount  of  damage,  and  pay  the  same,  provided 
it  does  not  exceed  180/.  If  it  had  appeared  in  this  case  that  the  own- 
ers of  the  Carolina  could  not  have  been  Uable  at  all,  I  agree  that  the 
consideration  for  the  promise  would  have  failed.  But  the  facts  stated 
in  the  case  by  no  means  show  that  the  owners  would  not  have  been 
liable  ;  for  by  the  pilot  act  the  owners  are  only  protected  in  those  cases 
where  the  loss  arises  from  the  default,  neglect,  incapacity,  or  incompe- 
tency of  the  pilot.  Now  there  is  no  fact  in  this  case  which  shows  that 
the  misconduct  of  the  pilot  was  the  cause  of  the  injury. 

HoLKOTO,  J.  I  am  of  the  same  opinion.  If  a  person  is  about  to 
sue  another  for  a  debt,  for  which  the  latter  is  not  answerable,  the  mere 
consideration  of  forbearance  is  not  sufficient  to  render  him  Uable  for 
tliat  debt.  Any  act  of  the  plaintiff,  however,  from  which  the  defendant 
derives  a  benefit  or  advantage,  or  any  labor,  detriment,  or  inconvenience 
sustained  by  the  plaintiff,  is  a  sufficient  consideration  to  support  a 
promise.  Now  the  consideration  of  forbearance  is  a  benefit  to  the 
defendant,  if  he  be  Uable  ;  but  it  is  not  any  benefit  to  him,  if  he  be  not 
Uable.  The  authorities  cited  proceed  on  that  gi'ound.  This  case  differs 
materiaUy  from  those  ;  for  here  a  suit  actually  commenced  is  given  up, 
and  a  suit  too  the  final  success  of  wnich  was  involved  in  some  doubt 


SECT,    n.]  HERRING   V.   DORELL.  277 

The  plaintiff  might  sustain  a  detriment  by  giving  up  all  claim  in  respect 
of  the  expenses  incurred,  and  the  defendant  might  derive  a  benefit  by 
haviog  that  suit  put  an  end  to,  without  further  trouble  or  investigation. 
Now  I  am  of  opinion  that  the  giving  up  of  a  suit  instituted  for  the  pur- 
pose of  tr^-ing  a  doubtful  question,  and  consenting  to  deliver  up  the 
ship,  which  might  otherwise  have  been  detained  untU  the  secm-ity 
required  was  given,  is  a  good  consideration  to  support  a  promise  to 
pay  a  stipulated  smn  b}'  way  of  damage,  in  case  the  actual  damage 
amount  to  that  sum.  In  Com.  Dig.,  tit.  Action  upon  the  Case  upon 
Assumpsit  (F.  8),  it  is  laid  down  that  an  action  does  not  lie  if  a  party 
promise  in  consideration  of  a  surrender  of  a  lease  at  will,  for  the  lessor 
might  determine  it ;  unless  there  was  a  doubt  whether  it  was  a  lease  at 
will  or  for  years ;  and  1  Rol.  23,  1.  25,  35,  and  1  Brownlow,  6,  are 
cited.  That  is  an  authoritj'^lQ^jiQHLjhat  the  jjving_up^£  a  question- 
able right  is  a  sufficient  nonsjdpTatjon  to  support  a  prmnTse.  Here, 
therefore,  the  giving  Up  of  a  suit,  instituted  to  try  a  question  respecting 
which  the  law  is  doubtful,  is  a  good  consideration  to  support  a  promise. 
I  think,  therefore,  that  this  action  is  sustainable. 
Best,  J.,  concurred. 


fA 


HERRING   V.    DORELL. 
Ls  THE  Queen's  Bench,  Trinity  Term,  1840. 

[Reported  in  8  DowUng's  Practice  Cases,  604. J 

Ji.  V.  Richards  showed  cause  against  a  rule  nisi,  obtained  by 
V.  Williams  for  arrest  of  judgment  or  a  new  trial  in  this  case.  The 
case  had  been  tried  before  the  sheriff  of  Brecon,  and  a  verdict  found 
in  favor  of  the  plaintiff  for  2/.  IO5.  \d.  The  ground  of  seeking  to 
arrest  the  judgment  was,  that  no  sufficient  consideration  for  the  prom- 
ise by  the  defendant  was  disclosed  on  the  face  of  the  declaration.  The 
substance  of  the  declaration  was,  that  a  person  named  Watkins  and 
a  person  named  Voss  were  joint  debtors  to  the  plaintiff.  The  plaintiff 
proceeded  against  them,  and  ultimately  took  AValkins  and  Voss  in 
execution.  An  aiTangement  was  made  between  AVatkins  and  the 
phintiff,  and  accordingly  the  former  was  discharged  out  of  custody. 
Voss  remained  in  custody,  and  in  consideration  of  the  discharge  of 
Voss,  the  declaration  alleged  that  the  defendant  undertook  to  pay  the 
Bum  of  21.  10s.  \d.  due  from  Voss  to  the  plaintiff,  and  Voss  was 
accordingh'  discharged.  It  was  contended  in  support  of  the  rule  that, 
the  plaiuiiff  having  discharged  Watkins,  who  was  jointh'  liable  with 
Voss,  that  had  the  effect  of  entitUng  Voss  to  his  discharge.  Jiic/iards 
submitted  that,  even  after  the  discharge  of  Watkins,  some  step  being 
necessary  in  order  to  obtain  the  discharge  of  Voss,  some  portion  of 
his  imprisonment,  until  that  step  could  be  taken,  must  be  considered 
as  lawful.     Suppose  the  prisoners  had  been  confined  in  two  different 


278  HERKING  V.   DORELL.  [CHAP.  I. 

gaols,  one  in  Cornwall  and  the  other  in  Northumberland,  and  one  of  them 
was  discharged  in  Cornwall,  some  time  must  be  allowed  in  order  to 
discharge  the  other  defendant  from  the  gaol  in  Northumberland.  The 
detention  of  the  second  defendant  until  his  discharge  must  be  consid- 
ered as  lavvful.  The  smallest  consideration  was  sufficient  to  support 
the  promise  alleged  in  the  declaration,  and  here  was  some  consideration 
for  that  purpose.  If  the  proceeding  could  be  considered  as  a  nulUty 
then  the  plaintiff  would  be  Uable  to  an  action  of  trespass ;  but  in 
Crozer  v.  Pilhng,^  it  aj)peared  that  an  action  on  the  case  was  the  proper 
remedy,*  and  not  an  action  of  trespass.  There  it  was  held  that  a  plain 
tiff  is  bound  to  accept  from  a  defendant  in  custody  under  a  ca.  sa.  the 
debt  and  costs  when  tendered  in  satisfaction  of  the  debt,  and  to  sign 
an  authority  to  the  shentf  to  discharge  the  defendant  out  of  custody ; 
and  that  an  action  on  the  case  will  lie  against  the  plaintiff  for  mali- 
ciously refusing  so  to  do.  The  case  of  Smith  v.  Eggington  ^  was  an 
authority  to  the  same  effect.  The  unprisonment  was  legal  in  its  com- 
mencement, and  therefore  the  sherifi"  could  not  be  liable  as  a  trespasser. 
It  was  not  therefore  a  void  imprisonment.  The  case  of  Atkinson  v. 
Bayntun  ^  was  an  authority  to  show  that  sufficient  consideration  was 
disclosed  on  the  face  of  this  declaration  to  support  the  defendant's 
promise.  The  marginal  note  was  :  "  M.  being  in  custody  on  execution 
pursuant  to  a  warrant  of  attorney,  b}^  which  he  had  agreed  that  execu- 
tion should  issue  from  time  to  time  for  certain  instalments  of  a  mort- 
gage debt,  defendant,  in  consideration  that  plaintiff  would  discharge 
M.  out  of  custody,  undertook  that  he  should,  if  necessary,  be  forth- 
coming for  a  second  execution.  Held,  that  defendant's  was  a  valid 
contract."  He  cited  Sturlyn  ik  Albau}',  and  Pulliu  v.  Stokes.*  There, 
A.  having  recovered  judgment  against  B.,  and  a,Ji.fa.  being  dehvered 
to  the  sheriff,  in  consideration  that  A.  at  the  special  request  of  C.  had 
requested  the  sheriff  not  to  execute  the  writ,  C.  promised  to  pay  A. 
the  debt  and  costs,  together  with  the  sherifTs  poundage,  bailiff's  fees, 
and  other  charges.  On  a  judgment  by  default  and  error  brought,  the 
promise  was  holden  to  be  binding  on  C,  though  it  was  not  averred 
that  the  sheriff  did  in  fact  desist  from  the  execution,  nor  what  the 
amount  of  the  poundage,  &c.,  was,  nor  that  the  defendant  had  notice 
of  such  amount.  In  the  present  case,  Voss  was  not  taken  in  execution 
after  the  discharge  of  AVatkins,  but  both  were  legallj'  in  custody  at  the 
time  of  Watkins's  discharge.  The  detention  of  one  prisoner  in  such  a 
case  could  not  be  considered  as  a  trespass.  But  suppose  it  should  be 
said  that  the  plaintiff  was  bound  to  take  steps  to  discharge  Voss  ;  if  he 
was,  he  was  entitled  to  a  reasonable  time  for  that  purpose.  During  the 
time  that  elapsed  before  his  actual  discharge,  he  was  in  legal  custody. 
That  custody  furnished  a  sufficient  consideration  to  support  the  defend- 
ant's promise. 

V .   Williams^  in  support  of  the  rule. 

1  4  B.  &  C.  26  2  6  Dowl.  P.  C.  38.         «  1  B.  N.  C.  444.         «  2  II.  Bl.  312. 


SECT.  II.]  SMITH  V.   MONTEITH.  279 

Coleridge,  J.  The  question  in  this  ease,  whether  this  was  a  good 
consideration  or  not,  depends  upon  the  situation  of  Voss  at  the  time  of 
his  discharge.  Both  he  and  Watkins  had  been  taken  under  a  joint 
execution.  AVatkins  made  certain  terms  with  the  plaintiff,  and  the 
latter  voluntarih-  discharged  him.  No  tenns  were  made  as  to  the  situ- 
ation of  Voss ;  his  rights  were,  therefore,  to  be  considered  according 
to  the  situation  in  which  the  law  had  placed  him.  Suppose  Watkins 
alone  had  been  in  custod>',  it  is  clear  that  the  voluntary  discharge  of 
liim  would  have  been  a  discharge  of  the  debt,  and  no  other  proceedings 
could  have  been  taken  to  recover  it.  It  seems  to  me,  in  the  same  wa}', 
that  the  discharge  of  Watkins  operated  to  release  Voss,  his  co-det)tor. 
I  think  therefoi-e,  both  on  principle  and  authority,  that  this  rule  ought 
to  be  made  absolute.  Hule  absolute.^ 


SMITH  AND  Another  v.  MONTEITH. 
In  the  Exchequer,  November  18  &  20,  1844. 

[Reported  in  13  Meeson  Sf  Wdshy,  427.] 

Assumpsit.  The  declaration  stated  that  an  action  had  been  com- 
menced by  the  plaintiffs  against  one  Charles  J.  Dunlop,  for  the  recovery 
of  a  certain  sum  of  money,  to  wit,  the  sum  of  83/.  6s.  \ld.  ;  that  said 
Dunlop,  being  about  to  leave  England,  had  been  arrested  and  was  in 
custody  of  the  sheriff,  under  a  writ  of  capias  duly  issued  by  the  order 
of  a  judge  in  said  action  ;  that  costs  and  charges  to  a  certain  amount, 
to  wit,  the  amount  of  20/.  had  been  incurred  by  the  plaintiffs  in  the 
prosecution  of  said  action  and  the  arrest  of  said  Dunlop  ;  and  there- 
upon, in  consideration  that  the  plaintifis,  at  the  request  of  the  defend- 
ant, would  discharge  the  said  Dunlop  from  said  custody,  the  defendant 
undertook  and  promised  the  phvintifis  to  pay  to  them  the  sum  of  88/. 
for  the  debt,  interest,  costs  and  charges  of  the  plaintiffs  in  said  action, 
when  he,  the  defendant,  should  be  thereunto  afterwards  requested ; 
that  the  plaintiffs,  confiding  in  said  promise,  did  discharge  said  Dunlop 
from  said  custody  ;  (avennent  of  notice  and  request  to  paj'  said  sum  of 
88/.  for  debt,  interest  and  costs) .     Breach  :   non-pa}-ment. 

Plea :  that  there  was  not  any  claim  or  demand,  or  cause  of  action 
against  said  Dunlop,  in  respect  whereof  the  plaintiffs  could  or  were 
entitled  to  recover  in  the  said  action  the  said  sum  which  the  defendant 
so  promised  to  pay,  or  any  other  sum  or  sums,  matter  or  thing ;  and 
the  plaintiffs  did  not,  by  discharging  said  Dunlop  from  custod\',  give 
up  or  part  with  any  available  remedy  against  the  said  Dunlop,  as  the 
plaintiffs  at  all  times  well  knew,  but  which  the  defendant,  at  the  time 
of  making  said  promise,  did  not  know  ;  and  the  defendant  says  that 

^  Commonwealth  v.  Johnson,  3  Cush.  454,  ace.     See  also  Rood  v.  Joues,  1  Doug 
192. 


280  SMITH   V.   MONTEITH.  [CHAP.    I. 

said  arrest  and  detaining  in  custody,  and  the  proceedings  in  said  action 
were,  on  the  part  of  the  plaintiffs,  colorahle  only,  and  the  same  wer« 
not  pi-ocured,  commenced,  or  prosecuted  by  the  plaintiffs  for  the  puq^ose 
or  with  the  intent  of  trying  any  doubtful  or  contested  question  of  law 
or  fact.     Verification.' 

Special  demurrer,  assigning  for  causes,  among  others,  that  the  plea 
does  not  in  any  manner  answer  the  declai'ation  ;  that  it  neither  trav- 
erses any  allegation  therein,  nor  confesses  and  avoids  the  cause  of 
action  therein  stated ;  that  the  contract  of  the  defendant  stated  in  the 
declaration  is  an  original  contract,  founded  on  a  new  consideration, 
altogether  distinct  and  different  from  the  cause  of  action  against  the 
said  C.  J.  Dunlop,  such  consideration  for  the  defendant's  promise  being 
an  act  done  by  the  plaintiffs  for  the  benefit  of  the  said  C.  J.  Dunlop, 
at  the  request  of  the  defendant,  and  such  benefit  to  the  said  C.  J.  Dun- 
lop being  precisely  the  same  whether  the  plaintiflfs  had  or  had  not  any 
cause  of  action  against  him ;  and  therefore  the  question,  whether  the 
plaintiffs  had  any  cause  of  action  against  the  said  C.  J.  Dunlop,  is  in 
this  action  wholly  immaterial. 

Cromptoii,  in  support  of  the  demurrer. 

Peacock,  contra. 

Pollock,  C.  B.  I  am  of  opinion  that  the  plaintiffs  are  entitled  to 
the  judgment  of  the  Court.  This  is  an  action  against  the  defendant, 
founded  on  a  promise  by  him  to  pay  a  sum  of  money,  in  consideration 
of  the  discharge  out  of  custody  of  a  defendant  in  a  fonner  action,  who 
had  been  arrested  at  the  suit  of  the  plaintiffs.  For  aught  that  appears 
that  arrest  was  legal,  and  the  part}'  was  in  lawful  custody' :  this  is  not 
therefore  a  case  of  duress  ;  neither  can  it  be  put  as  a  case  of  fraud,  for 
there  is  no  sufficient  allegation  of  fraud  in  an}-  part  of  the  plea.  The 
substance  of  the  plea  is,  that  there  was  not  any  claim  or  demand,  or 
cause  of  action,  in  respect  of  which  the  plaintiffs  were  entitled  to  sue 
the  defendant  in  the  former  action  ;  but  there  is  no  averment  that  the 
plaintiflfs  were  aware  of  that ;  and,  for  any  thing  that  is  stated  in  the 
plea,  the  original  inception  of  that  action  was  perfectly  bona  Jidcy 
although  the  plaintiffs  may  have  been  mistaken  as  to  their  remedy,  or 
the  form  of  proceedings  adopted  b}'  them.  The  plea  goes  on  to  state 
that  the  plaintiffs  did  not,  by  discharging  Dunlop,  give  up  or  part  with 
any  available  remedy  against  him.  The  words  ''available  remedy" 
are  rather  loose  and  vague  ;  the}'  ma}'  mean  several  things  ;  the}'  would 
be  satisfied  by  the  fact  of  Dunlop  being  a  mere  pauper,  for  it  is  not 
stated  that  the  plaintiffs  had  no  legal  right  or  remedy  which  they  gave 
up,  but  merely  that  they  had  no  available  remedy.  So,  also,  those 
words  would  be  satisfied  if  there  were  some  latent  defect  which  might 
appear  in  pleading,  or  come  out  in  evidence ;  yet  the  action  might  be 
honestly  commenced,  and  the  claim  founded  in  justice  ;  and  it  cannot 
be  said  that,  because  the  proceedings  were  open  to  such  latent  defect 

1  Li  this  and  a  few  other  casee  the  statement  of  the  pleadings  has  been  curtaihti 
of  some  of  its  verbiajjre. 


SECT.    II.]  SMITH   V.   MONTEITH.  281 

the  defendant's  promise  would  not  be  founded  on  a  good  consideration. 
And  this  is  the  only  part  of  the  plea  as  to  which  there  is  an}'  averment 
of  the  plaintiff's  knowledge.  It  then  goes  on  to  say,  that  the  action 
against  Dunlop  was  not  l>rought  for  the  purpose  of  trying  any  doubt- 
ful or  contested  right.  It  seems  to  me  that  the  declaration  in  its  form 
calls  for  an  answer,  and  that  this  plea  is  no  sufficient  answer.  I  agree 
with  the  general  scope  of  ]Mr.  Peacock's  argument.  If  a  partj'  does 
an  illegal  act,  or  if  he  abuses  the  process  of  the  court,  to  make  it  the 
mstrument  of  oppression  or  extortion,  that  is  a  fraud  on  the  law :  and 
if  the  original  arrest,  or  the  continuance  of  that  aiTCst,  were  of  that 
character,  and  were  shown  to  be  so  by  proper  averments  in  the  plea, 
that  would  very  probabh^  constitute  a  good  defence  to  an  action  like 
the  present.  But  this  plea  falls  far  short  of  that,  the  arrest  being 
legal,  and  there  being  no  averment  of  knowledge  on  the  ]iart  of  the 
plaintiffs,  except  that  tlie\-  knew  they  did  not  part  with  an}-  available 
remedy  i>y  discharging  Dunlop  out  of  custody.  It  does  not  therefore 
contain  a  sufficient  statement  in  fact  to  bring  it  within  the  scope  of 
Mr.  Peacock's  argument,  or  the  cases  cited  by  him.  The  judgment 
raust  therefore  be  for  the  plaintiffs. 

Parke,  B.  I  am  also  of  opinion  that  the  plaintiffs  are  entitled  to 
judgment.  In  the  first  place,  I  think  that  the  declaration  is  sufficient 
on  general  demurrer.  It  states  that  an  action  had  been  brought  and 
was  depending  at  the  suit  of  the  plaintiffs  against  a  person  of  the 
name  of  Dunlop,  and  that  he  had  been  arrested  and  was  in  custody  on 
a  capias  duly  issued  in  that  action.  On  such  a  statement  it  must  be 
intended,  prima  facie,  that  the  action  was  well  founded,  and  the  writ 
regularly  and  properly  issued.  That  doctrine  is  laid  down  in  the  case 
of  Bidwell  v.  Catton.  That  was  an  action  of  assumpsit  on  a  promise 
by  the  defendant  to  pay  50/.,  in  consideration  of  the  plaintiff's  forbear- 
ing to  prosecute  a  suit ;  and  after  verdict  it  was  objected  in  arrest  of 
judgment,  first,  that  it  was  not  alleged  that  the  plaintiff  had  any  just 
cause  of  action,  and,  secondly,  that  the  action  still  remained.  But  the 
Court  nevertheless  gave  judgment ;  "  for,  first,  suits  are  not  presumed 
causeless,  and  the  promise  argues  cause,  in  that  he  desired  to  stay  oil' 
the  suit ;  secondly,  though  this  did  not  require  a  discharge  of  the 
action,  yet  it  requires  a  loss  of  the  writ  and  a  delay  of  the  suit,  which 
was  both  benefit  to  the  one  and  loss  to  the  other."  Therefore  I  think, 
prima  facie,  this  declaration  is  sufficient,  the  former  action  being  pre- 
sumed to  be  for  cause,  and  the  capias  being  presumed  to  have  been 
properly  issued.  There  is  another  case  which  I  may  advert  to,  to  the 
same  effect,  of  Pooly  v.  Lady  Gilberd.^  There  it  is  stated,  that  "  the 
plaintiff  had  preferred  a  bill  in  chancery  against  the  defendant  foi 
marriage  money  by  her  received.  The  defendant  upon  this,  in  consid- 
eration that  the  plaintiff  would  stay  the  suit  there  by  him  commenced, 
did  assume  to  pay  him  100/.,  and  also  to  deUver  up  a  bond  of  40/., 
■svhich  she  had.     Upon  this  promise  the  plaintiff  made  stay  of  his  suit, 

1  2  Bulstr.  41. 


282  SMITH    V.    MONTEITH.  [cUAl'.    L 

but  the  defendant  not  performing  the  promise,  upon  this  the  action  ayus 
brought,  and  a  verdict  found  for  the  plaintiff.  It  was  moved  for  the 
defendant,  in  arrest  of  judgment,  that  the  declaration  was  not  gO(xi,  for 
that  there  was  no  good  ground  to  raise  the  promise,  there  being  no 
sullieient  consideration  for  the  same,  for  it  doth  not  ai)pear  in  thb 
declaration  that  the  suit  in  chancery  was  a  lawful  suit  to  be  there 
determined,  and  so,  if  the  suit  was  not  lawful,  the  consideration  to 
forbear  such  a  suit  was  no  good  consideration  to  raise  a  promise." 
But  the  couit  say  that,  "  if  the  plaintiff"  had  onl}'  a  subpoena  out  of 
chancery  against  the  defendant,  and  did  not  make  the  cause  thereof 
known  to  him,  —  if  he,  in  consideration  that  he  would  not  prosecute 
any  farther  against  him,  did  assume  to  pay  him  so  much,  this  clearly 
is  a  good  consideration  to  raise  a  promise."  Upon  these  authorities, 
and  upon  principle,  this  declaration  is  sufficient. 

Then  the  question  is,  whether  the  plea,  which  must  be  construed 
most  strongly  against  the  defendant,  discloses  an}'  answer.  I  agree 
with  Mr.  Ci'ompton,  that  it  is  diliicult  to  see  upon  what  principle  the 
plea  is  constinicted.  No  doubt  it  shows  a  prima  facie  case  of  hardsliip 
and  injustice  upo.i  the  defendant  in  the  former  action  ;  but  the  question 
is,  whether  it  discloses  a  legal  defence  to  this  action.  It  does  not  show 
that  the  arrest  was  illegal ;  and  it  certainly  is  not  sufficient  on  the 
ground  of  fraud,  because  there  is  no  averment  of  any  false  statement 
or  misrepresentation  of  fact  in  order  to  procure  the  arrest ;  still  less 
does  it  disclose  any  ground  of  duress,  since  all  the  avennents  show 
that  the  imprisonment  was  lawful.  If  it  be  good  at  all,  it  must  be  on 
the  ground  of  want  of  consideration  for  the  defendant's  promise. 
Now,  it  seems  to  me  that  the  plea  does  not  disclose  sufficient  matter 
to  show  a  want  of  consideration.  Taking  it  most  strongly  against  the 
plaintiffs,  in  substance  it  is  no  more  than  this,  that  the  plaintiffs  had 
no  claim  or  cause  of  action  which  could  have  been  enforced  against 
Dunlop  ;  but  it  does  not  allege  that  the  plaintiffs  knew  that  fact.  It 
must  be  taken,  therefore,  that  the  capias  on  which  Dunlop  was  arrested 
was  regularly  and  duly  obtained ;  and  the  plea  does  not  show  that  the 
plaintiffs  were  guilt}'  of  an}'  illegal  conduct,  that  they  acted  illegally 
in  making  the  arrest,  or  from  malicious  motives,  or  that  the  arrest  was 
without  reasonable  or  probable  cause.  Dunlop,  therefore,  as  it  must 
be  assumed,  was  in  custody  at  the  suit  of  the  plaintiffs  under  process 
which  was  legal  and  regular ;  and  that  being  so,  the  discharge  from 
such  an  aiTcst  is  quite  a  sufficient  consideration  to  support  the  promise 
laid  in  this  declaration  ;  and  I  entirely  agree  that  we  caiinot  inquire 
into  the  quanhim  or  amount  of  consideration.  Upon  the  face  of  the 
plea,  therefore,  there  was  a  legal  arrest ;  and  the  discharge  from  that 
arrest,  under  which  the  pa}Tnent  of  the  debt  might  have  been  obtained, 
was  a  benefit  to  Dunlop,  quite  sufficient  to  found  a  consideration  for 
a  promise  to  pay  that  debt.  For  these  reasons  I  am  of  opinion  thai 
the  plea  furnishes  no  sufficient  answer  to  the  declaration,  and  that  our 
judgment  must  be  for  the  plaintiffs. 


SECT,   n.]  COOK  V.   WRIGHT.  283 

Gurnet,  B.  I  am  of  the  same  opinion.  To  make  the  plea  a  suffi- 
cient answer,  it  ought  to  ha^ve  shown,  either  that  the  plaintiffs  acted 
illegally  or  fraudulently  in  making  the  arrest,  or  that  they  practised 
some  fraud  on  the  defendant.  It  shows  neither,  and  therefore  is  not 
sufficient  answer. 

Judgment  for  the  plaintiffs. 


COOK  AND  Others  v.  WRIGHT.  ^ 

In  the  Queen's  Bench,  July  9,  1861.        —— — 

[Reported  in  1  Best  ^  Smith,  559.] 

Blackburn,  J.  (July  9th),  delivered  the  judgment  of  Cockburn,  C.  J., 
"WiGHTMAN,  J.,  and  himself;  Crompton,  J.,  having  left  the  court  before 
the  argument  was  concluded. 

In  this  case  it  appeared  on  the  trial  that  the  defendant  was  agent  for 
a  Mrs.  Bennett,  who  was  a  non-resident  owner  of  houses  in  a  district 
subject  to  a  local  act.    "Works  had  been  done  in  the  adjoining  street  by 
the  commissioners   for  executing  the  act,   the  expenses  of   which, 
under  the  provisions  of  their  act,  they  charged  on  the  owners  of  the 
adjoining  houses.     Notice  had  been  given  to  the  defendant,  as  if  he 
had  himself  been  owner  of  the  houses,  calling  on  him  to  pay  the  pro- 
portion chargeable  in  respect  of  them.     He  attended  at  a  board  meeting 
of  the  commissioners,  and  objected  both  to  the  amount  and  nature  of 
the  charge,  and  also  stated  that  he  was  not  the  owner  of  the  houses, 
and  that  Mrs.  Bennett  was.     He  was  told  that,  if  he  did  not  pay,  he 
would  be  treated  as  one  Goble  had  been.     It  appeared  that  Goble  had 
refused  to  pay  a  sum  charged  against  him  as  owner  of  some  houses, 
and  the  commissioners  had  taken  legal  proceedings  against  him,  and  he 
had  then  submitted  and  paid,  with  costs.     In  the  result  it  was  agreed 
between  the  commissioners  and  the  defendant  that  the  amount  charged 
upon  him  should  be  reduced,  and  that  time  should  be  given  to  pay  it 
m  three  instalments ;    he  gave  three  promissor^^  notes  for  the  three 
instalments ;    the   first  was  duly  honored ;    the  others  were  not,  and 
were   the   subject   of  the   present   action.     At   the   trial   it  appeared 
that  the  defendant  was  not  in  fact  owner  of  the  houses.     As  agent  foi 
the  owner  he  was  not  personally  liable  under  the  act.     In  point  of  law 
therefore,  the  commissioners  were  not  entitled  to  claim   the   monej 
from  him  ;  but  no  case  of  deceit  was  alleged  against  them.     It  must  be 
Uiken  that  the  commissioners  honcstl3'  believed  that  the  defendant  was 
personall}-  liable,  and  reall}'  intended  to  takn  legal  proceedings  against 
him,  as  they  had  done  against  Goble.     The  defendant,  according  to  his 
own  evidence,  never  believed  that  he  was  liable  in  law,  but  signed  th( 
notes  in  order  to  avoid  being  sued  as  Goble  was.     Under  these  circum- 
stances the  substantial  question  reserved  (irrespective  of  the  form  oi 


284  COOK  V.  wiiiGHT.  [chap.  I. 

the  plea)  was  whether  there  was  an}'  consideration  for  the  notos.  AVo 
are  of  opinion  that  there  was. 

There  is  no  douht  that  a  bill  or  note  given  in  consideration  of  what 
is  supposed  to  be  a  debt  is  without  consideration,  if  it  appears  that 
tliere  was  a  mistake  in  fact  as  to  the  existence  of  the  debt ;  Bell  v. 
Gardiner ;  ^  and,  according  to  the  cases  of  Southall  v.  Rigg  and  For- 
man  v.  Wright,  the  law  is  the  same  if  the  bill  or  note  is  given  in  con- 
sequence of  a  mistake  of  law  as  to  the  existence  of  the  debt.  But  here 
there  was  no  mistake  on  the  part  of  the  defendant  either  of  law  or  fact. 
What  he  did  was  not  merely  the  making  an  erroneous  account  stated, 
or  promising  to  pay  a  debt  for  which  he  mistakingly  believed  himself 
liable.  It  api)eared  on  the  evidence  that  he  believed  himself  not  to 
be  liable ;  but  he  knew  that  the  plaintiffs  thought  him  liable,  and 
would  sue  him  if  he  did  not  pa}',  and  in  order  to  avoid  the  expense 
and  trouble  of  legal  proceedings  against  himself  he  agreed  to  compro- 
mise :  and  the  question  is,  whether  a  person  who  has  given  a  note  as  a 
compromise  of  a  claim  honestly  made  on  him,  and  which  but  for  that 
compromise  would  have  been  at  once  brought  to  a  legal  decision,  can 
resist  the  payment  of  the  note  on  the  ground  that  the  original  claim 
thus  compromised  might  have  been  successfully  resisted. 

If  the  suit  liad  been  actually  commenced,  the  point  would  have  been 
concluded  by  authority.  In  Longiidge  v.  Dorville  it  was  held  that 
tlie  compromise  of  a  suit  instituted  to  try  a  doubtful  question  of  law 
was  a  sufficient  consideration  for  a  promise.  In  Atlee  v.  Backhouse,^ 
where  the  plaintiff's  goods  had  been  seized  by  the  excise,  and  he  had 
afterwards  entered  into  an  agreement  with  the  commissioners  of  excise 
that  all  proceedings  should  be  terminated,  the  goods  deUvered  up  to 
the  plaintiff,  and  a  sum  of  money  paid  by  him  to  the  commissioners, 
Parke,  B.,  rests  his  judgment,  p.  650,  on  the  ground  that  this  agree- 
ment of  compromise  honestly  made  was  for  consideration,  and  binding. 
In  Cooper  r.  Parker  ^  the  Court  of  Exchequer  Chamber  held  that  the 
withdrawal  of  an  untrue  defence  of  infancy  in  a  suit,  with  pa}Tnent  of 
costs,  was  a  sufficient  consideration  for  a  promise  to  accept  a  smaller 
8um  in  satisfaction  of  a  larger. 

In  these  cases,  however,  litigation  had  been  actually  commenced; 
and  it  was  argueil  before  us  that  this  made  a  difference  in  point  of  law, 
and  that  though,  where  a  plaintiff  has  actually  issued  a  writ  against  a 
defendant,  a  compromise  honestly  made  is  binding,  yet  the  same  com- 
promise, if  made  before  the  writ  actually  issues,  though  the  litigation 
is  impending,  is  void.  Eldwards  r.  Baugh  was  relied  upon  as  an  author- 
ity for  this  proposition.  But  In  that  case  Lord  Abinger  expressly  bases 
his  judgment  (pp.  645,  646)  on  the  assumption  that  the  declaration  did 
not,  either  expressly  or  impliedly,  show  that  a  reasonable  doubt  existed 
between  the  parties.  It  may  be  doubtful  whether  the  declaration  in 
that  case  ought  not  to  have  been  construed  as  disclosing  a  compromise 

1  4  M.  &  Gr.  11.  2  3  M.  &  W.  633.  3  15  Com.  B.  822. 


SECT,    n.]  CALLISHER   V.   BISCHOFFSHEIM.  285 

of  a  real  lona  fde  claim,  but  it  does  not  appear  to  have  been  so  con- 
strued by  the  Court.  We  agree  that  unless  there  was  a  reasonable 
claim  on  the  one  side,  wliich  it  was  hona  fide  intended  to  pursue,  there 
would  be  no  ground  for  a  compromise  ;  but  we  cannot  agree  that 
(except  as  a  test  of  the  reality  of  the  claim  in  fact)  the  issuing  of  a 
writ  is  essential  to  the  validity  of  the  compromise.  The  position  of 
the  parties  must  necessarily  be  altered  in  every  case  of  compromise,  so 
that,  if  the  question  is  afterwards  opened  up,  they  cannot  be  replaced 
as  they  were  before  the  compromise.  The  plaintiff  may  be  m  a  less 
favorable  position  for  renewing  his  litigation  ;  he  must  be  at  an  addi- 
tionul  trouble  and  expense  in  again  getting  up  his  case,  and  he  may  no 
lono-er  be  able  to  produce  the  evidence  which  would  have  proved  it 
originally.  Besides,  though  he  may  not  in  point  of  law  be  bound  to 
refrain  from  enforcing  his  rights  against  third  persons  during  the  con> 
tinuance  of  the  compromise,  to  which  they  are  not  parties,  \<  practi- 
cally the  effect  of  the  compromise  must  be  to  prevent  his  doing  so. 
For  instance,  in  the  present  case,  there  can  be  no  doubt  that  the  prac- 
tical effect  of  the  compromise  must  have  been  to  induce  the  commis- 
sioners to  refrain  from  taking  proceedings  against  Mrs.  Bennett,  the 
real  owner  of  the  houses,  while  the  notes  given  by  the  defendant,  hei 
agent,  were  running ;  though  the  compromise  might  have  afforded  no 
ground  of  defence  had  such  proceedings  been  resorted  to. 

It  is  this  detriment  to  the  party  consenting  to  a  compromise  arising 
from  the  necessary  alteration  in  his  position  which,  in  our  opinion, 
forms  the  real  consideration  for  the  promise,  and  not  the  technical  and 
almost  illusory  consideration  arising  from  the  extra  costs  of  litigation. 
The  real  consideration  therefore  depends,  not  on  the  actual  commence- 
ment of  a  suit,  but  on  the  realit}'  of  the  claim  made  and  the  bona  fides 
of  the  compromise. 

In  the  present  case  we  think  there  was  sufficient  consideration  for 
the  notes  '.n  the  compromise  made  as  it  was. 

The  rule  to  enter  a  verdict  for  the  plaintiff  must  be  made  absolute. 

Rule  absolute. 


CALLISHER  v.  BISCHOFFSHEIM. 

In  the  Queen's  Bench,  June  6,  1870.  {^(Majc. 

[Reported  in  Tjaw  Reports,  5  Qaeen'a  Bench,  449.J  " 

Decxabation  that  the  plaintiff  had  alleged  that  certain  moneys  were 
due  and  owing  to  him,  to  wit,  from  the  government  of  Honduras,  and 
from  Don  Carlos  Guttierez  and  others,  and  had  threatened  and  was 
about  to  take  legal  proceedings  against  the  said  government  and  persona 
to  enforce  pajTuent  of  the  same  ;  and  thereupon,  in  consideration  that 


286  CALLISHER   V.   BISCHOFFSHEEM.  [CHAP.    I. 

the  plaintiff  would  forbear  from  taking  such  proceedings  for  an  agreed 
time,  the  defendant  promised  to  deliver  to  the  plaintiff  certain  securi- 
ties, to  wit,  bonds  or  debentures,  called  Honduras  Railway  Loan 
Bonds,  for  sums  to  the  amount  of  600L  immediately  the  bonds  should 
be  printed.  Averment:  that  the  plaintiff  did  not  take  any  proceed- 
ings during  the  agreed  period  or  at  all;  and  that  all  conditions  had 
been  fulfilled  necessary  to  entitle  him  to  sue  in  respect  of  the  matters 
before  stated.  Breach :  that  the  defendant  had  not  delivered  to  the 
plaintiff  the  bonds  or  any  of  them. 

Plea:  That  at  the  time  of  making  the  alleged  agreement  no  moneys 
were  due  and  owing  to  the  plaintiff  from  the  government  and  other 
persons. 

Demurrer  and  joinder. 

James,  Q.  C.  (Hose  with  him),  in  support  of  the  demurrer. 

Pollock^  Q.  C.  {Joyce  with  him)  contra. 

CocKBUKN,  C.J.  Our  judgment  must  be  for  the  plaintiff.  No  doubt 
it  must  be  taken  that  there  was  in  fact  no  claim  by  the  plaintiff 
against  the  Honduras  government  which  could  be  prosecuted  by  legal 
proceedings  to  a  successful  issue  \  but  this  does  not  vitiate  the  contract 
and  destroy  the  validity  of  what  is  alleged  as  the  consideration.  The 
authorities  clearly  establish  that,  if  an  agreement  is  made  to  compromise 
a  disputed  claim,  forbearance  to  sue  in  respect  of  that  claim  is  a  good 
consideration ;  and  whether  proceedings  to  enforce  the  disputed  claim 
have  or  have  not  been  instituted  makes  no  difference.  If  the  defend- 
«nt's  contention  were  adopted,  it  would  result  that  in  no  case  of  a 
doubtful  claim  could  a  compromise  be  enforced.  Ever}'  day  a  compro- 
mise is  effected  on  the  ground  that  the  party  making  it  has  a  chance  of 
succeeding  in  it ;  and  if  he  hona  fide  behoves  he  has  a  fair  chance  of 
success,  he  has  a  reasonable  ground  for  suing,  and  his  forbearance  to 
sue  will  constitute  a  good  consideration.  When  such  a  person  forbears 
to  sue  he  gives  up  what  he  believes  to  be  a  right  of  action,  and  the 
other  party  gets  an  advantage ;  and,  instead  of  being  annoyed  with  an 
action,  he  escapes  from  the  vexations  incident  to  it.  The  defendant's 
contention  is  unsupported  by  authority. 

It  would  be  another  matter  if  a  person  made  a  claim  which  he  knew 
to  be  unfounded,  and  by  a  compromise  derived  an  advantage  under 
it :  in  that  case  his  conduct  would  be  fraudulent.  If  the  plea  had 
alleged  that  the  plaintiff  knew  he  had  no  real  claim  against  the  Hon- 
duras government,  that  would  have  been  an  answer  to  the  action. 

Blackburn,  J.  I  am  of  the  same  opinion.  The  declaration,  as  it 
stands,  in  effect  states  that  the  plaintiff,  ha\nng  alleged  that  certain 
moneys  were  due  to  him  from  the  Honduras  government,  was  about  tc 
enforce  pajnnent,  and  the  defendant  suggested  that  the  plaintiff's  claim, 
whether  good  or  bad,  should  stand  over.  So  far,  the  agreement  was  a 
reasonable  one.  The  plea,  however,  alleges  that  at  the  time  of  making 
the  agreement  no  money  was  due.  If  we  are  to  infer  that  the  plaintiff 
believed  that  some  money  was  due  to  him,  his  elaun  was  honest,  and 


SECT,    n.]      MILES   V.   liTEW   ZEALAND   ALFOliD   ESTATE   CO.        287 

the  compromise  of  that  claim  would  be  binding,  and  would  form  a  good 
consideration,  although  the  plaintiff,  if  he  had  prosecuted  his  origina' 
claim,  would  have  been  defeated.  This  case  is  decided  b}-  Cook  v. 
Wright.  In  that  case  it  ap})eared  from  the  evidence  that  the  defend- 
ant knew  that  the  original  claim  of  the  plaintitf  was  invalid,  yet  he 
was  held  liable,  as  the  plaintiff  believed  his  claim  to  be  good.  The 
Court  sa}' that  "the  real  consideration  depends  on  the  reality  of  the 
claim  made,  and  the  bona  fides,  of  the  compromise."  If  the  plaintiff '8 
claim  against  the  Honduras  government  was  not  hona  Jide^  this  ought 
to  have  been  alleged  in  the  plea ;  but  no  such  allegation  appears. 

Mellor,  J.  I  am  of  the  same  opinion.  If  the  plaintiff's  claim 
against  the  Honduras  government  was  fraudulent,  the  defendant  ought 
to  have  alleged  it. 

Ldsh,  J.,  concurred.  Judgment  for  the  plaintiff . 


MILES  V.   NEW  ZEALAND   ALFORD   ESTATE  COMPANY. 

In  the  Chancery  Division,  June  22-24,  1885,  February  4-6, 11, 1886. 

[Reported  in  32  Chancery  Division,  266.] 

The  plaintiff  in  1882  accepted  bills  for  £10,000  for  the  accommo- 
dation of  Samuel  Grant,  one  of  the  defendants  in  this  suit,  and  to 
secure  the  plaintiff  Grant  had  charged  125  shares  which  he  owned  in 
the  defendant  corporation  with  this  sum.  The  plaintiff  gave  notice 
to  the  company  of  his  interest  in  the  shares. 

Grant,  besides  being  a  promoter  of  the  company  and  the  holder  of 
the  above-mentioned  shares,  was  the  vendor  to  the  company  of  the 
property  in  New  Zealand  known  as  the  Alford  estate,  the  acquisition 
and  working  of  which  was  the  substantial  object  of  the  formation  of 
the  company.  He  was  also  the  chairman  of  the  board  of  directors, 
and  at  a  general  meeting  of  the  company  held  on  the  15th  of  March, 
1883,  an  angry  discussion  took  place,  at  the  close  of  which  he  gave  to 
the  company  a  written  guarantee  or  warranty  signed  by  himself  in  the 
following  terms :  — 

"Gentlemen,  I  hereby  guarantee  that  a  dividend  (duly  earned 
during  the  year)  of  not  less  than  £3  per  centum  per  annum  be  paid  to 
the  shareholders  for  the  year  ending  the  30th  of  June,  1883,  and  after- 
wards that  there  shall  be  paid  to  them  a  yearly  dividend  of  not  less 
than  £5  per  centum  per  annum  (duly  earned  during  the  year)  for  a 
period  of  ninety  years ;  and  I  undertake  within  three  calendar  months 
after  the  end  of  any  and  every  year  to  pay  to  you  any  sum  requisite  to 
pay  the  agreed  minimum  dividend  if  the  company  has  not  earned  it." 

No  resolution  was  passed  at  the  general  meeting  with  reference  to 
the  giving  of  the  guarantee. 

Grant  was  adjudicated  a  bankrupt  on  the  19th  of  February,  1884. 
In  May,  1884,  there  being  due  to  the  plaintiff  from  Grant  the 
sum  of  £7,885,  he  applied  to  the  company  to  do  and  concur  in  all 
Hcts  necessary  for  effecting  a  sale  and  transfer  of  the  125  shares. 


288      MILES    V.   NEW   ZEALAND   ALFORD   ESTATE   CO.         [CHAl.   I. 

The  company,  however,  claimed  a  lien  on  the  shares  under  the 
guarantee  given  to  them  by  Grant  and  their  articles  of  association,  in 
priority  to  the  plaintiff's  chai-ge;  and  they  refused  to  permit  any  sale 
or  transfer  of  the  shares  until  their  claim  was  satisfied.  The  plaintitf 
then  brought  this  action  against  the  company  and  Grant  and  his  trustee 
in  bankruptcy,  and  claimed  a  declaration  that  under  the  deed  of  the 
19th  of  October,  1882,  he  was  entitled  to  a  first  charge  on  the  125 
shares  for  the  principal  and  interest  secured  thereby;  and  he  pleaded 
that  the  guarantee  given  by  Grant  was  not  under  seal,  that  no  con- 
sideration had  been  given  for  it,  and  that  even  if  consideration  had 
been  given,  the  document  did  not  comply  with  the  requirements  of 
the  Statute  of  Frauds. 

The  evidence  upon  the  question  whether  any  consideration  was  in 
fact  given  for  the  guarantee  was  chiefl3'  derived  from  an  affidavit  of 
Mr.  J.  Redmayne,  the  secretary  of  the  company-,  the  material  para- 
graphs of  which  were  as  follows  :  — 

"1.  .  .  .  The  defendant  Grant  made  many  representations  to  the 
persons  who  originally  formed  the  company,  and  to  persons  who  be- 
came shareholders  thereof,  to  the  effect  that  the  Alford  estate  was  of 
great  value,  and  to  the  effect  that  the  labor  expenses  in  working  the 
said  estate  did  not  exceed  a  stated  sum,  and  other  representations 
calculated  to  induce  such  persons  to  find  moneys  to  form  and  become 
shareholders  in  the  company. 

'"3.  It  was  subsequently'  and  some  time  before  the  meeting  herein- 
after mentioned  discovered  that  the  statements  made  by  the  defendant 
Samuel  Grant  as  to  the  value  of  the  estate  were  untrue,  and  that  the 
labor  expenses  greatl}*  exceeded  the  amount  stated  b}-  him  as  aforesaid. 

"  4.  Claims  were  accordingly  made  on  the  defendant  Samuel  Grant  by 
the  defendant  company  and  on  behalf  of  the  shareholders  thereof,  and 
it  was  intimated  that  proceedings  would  be  taken  to  set  aside  the  sale 
and  recover  the  purchase-mone}'  from  him. 

"5.  At  the  general  meeting  of  the  defendant  compan}'  on  the  15th 
day  of  March,  1883,  .  .  ,  the  threatened  proceedings  against  the 
defendant  Samuel  Grant  were  the  main  subject  discussed  by  the  share- 
holders. The  defendant  Samuel  Grant  was  told  that  it  was  the  inten- 
tion of  the  defendant  coi"ipan3'  to  take  immediate  proceedings  against 
him,  and  he  thereupon  made  two  or  three  offers  with  a  view  to  the 
settlement  of  the  matter  and  to  compromise  the  claim  and  escape  legal 
proceedings,  and  eventually  he  offered  to  sign  the  guarantee  in  the 
said  affidavits  mentioned  in  consideration  of  the  defendant  company 
and  the  said  shareholders  agreeing  to  abandon  the  contemplated  pro- 
ceedings against  him  and  agreeing  to  give  up  their  claims  against  him 
which  were  the  subject  of  the  intended  proceedings. 

"  6.  The  defendant  company  and  the  shareholders  were  advised  that 
their  claims  were  substantially  of  such  a  nature  that  if  not  enforced  at 
once  the}'  could  not  be  enforced  at  all,  and  such  claims  were,  in  fact, 
claims  for  rescission  of  contract  which  could  not  be  equitabl}-  enforced 
if  proceedings  were  not  immediatelj- taken  ;  and  the  defendant  company. 


SECT.    II.]      ^IILES   V.   NEW   ZEALAND   ALFOED   ESTATE   CO.         289 

in  pursuance  of  the  said  agreement  under  which  the  said  guarantee 
was  signed,  and  in  consideration  of  the  said  guarantee,  abandoned 
the  intention  of  taking  such  proceedings  and  gave  up  such  claims  and 
did  not  commence  any  proceedings  or  assert  any  claim. 

At  the  trial  North,  J.,  held  that  the  claim  of  the  company  was 
valid,  the  forbearance  being  a  sufficient  consideration  under  Callisher 
V.  Bischoffsheim,  L.  R.  5  Q.  B.  449,  and  other  recent  decisions; 
but  that  the  company  could  not  by  its  by-law  entitle  itself  to  priority 
over  the  plaintiff. 

From  this  judgment  the  company  appealed. 

Barber,  Q.  C,  and  Blake  Odgers,  in  support  of  the  appeal. 

Davey,  Q.  C,  and  Stirling^  for  the  plaintiff. 

Cotton,  L.  J.  .  .  .  But  then  comes  the  question,  had  the  company  in 
fact  any  legal  claim  as  against  Grant?  Their  claim  was  under  a  letter 
signed  by  Grant  which  guarantees  or  undertakes  that  a  certain  yearly 
dividend  shall  be  paid  to  the  shareholders  during  a  long  period  of 
years;  and  it  is  objected  that  no  consideration  appears  upon  the 
face  of  the  letter,  and  that  no  consideration  was  in  fact  given  to 
Grant  for  that  promise  (I  call  it  "promise,"  because  to  call  it  "con- 
tract "  would  be  to  assume  there  was  consideration)  given  by  the 
shareholders. 

Now  there  was  much  argument  upon  the  question  what  is  a  good 
consideration  for  a  compromise ;  and  there  are  authorities  which  for  a 
considerable  time  were  considered  as  laying  down  the  law  upon  the  sub- 
ject;  but  Lord  Esher,  the  present  Master  of  the  Rolls,  in  Ex  parte 
Banner^  17  Ch.  D.  4S0,  is  supposed  to  have  thrown  doubts  on  these 
authorities  ;  and  what  he  said  was  in  fact  that  if  the  question  ever 
came  before  this  court  the  authority  of  Callisher  v.  Bischoffsheim,  Law 
Rep.  5  Q.  B.  449,  Ockford  v.  Barelli,  20  W.  R.  116,  and  Cook  v.  Wright, 
1  B.  &  S.  559,  would  have  to  be  considered. 

Now,  what  I  understand  to  be  the  law  is  this,  that  if  there  is  in  fact 
a  serious  claim  honestl}'  made,  the  abandonment  of  the  claim  is  a  goocT 
^*  consideration  "  for  a  contract;  and  if  that  is  the  law,  what  we  really 
have  to~now  consider  is  whether  in  the  present  case  there  is  any  evi- 
dence on  which  the  court  ought  to  find  that  there  was  a  serious  claim 
in  fact  made,  and  whether  a  contract  to  abandon  that  claim  was  the 
consideration  for  this  letter  of  guarantee.  I  am  not  going  into  the  ques- 
tion at  present  as  to  how  far  the  Statute  of  Frauds  will  raise  an}-  diffi- 
culty in  the  way.  And  I  think  also  that  the  mere  fact  of  an  action 
being  brought  is  not  material  except  as  evidence  that  the  claim  was  in 
fact  made.  That,  I  think,  was  laid  down  b}'  Lord  Blackburn  in  Cook  v. 
Wright,  and  also  in  Callisher  v.  Bischoffsheim,  and,  subject  to  the  ques- 
tion whether  these  cases  are  overruled,  or  ought  to  be  considered  as  un- 
sound, that,  I  think,  is  a  correct  statement  of  the  law.  Now,  by 
"honest  claim,"  I  think  is  meant  this,  that  a  claim  is  honest  if  the 
claimant  does  not  know  that  his  claim  is  unsubstantial,  or  if  he  docs 
not  know  facts,  to  his  knowledge  unknown  to  the  other  part}-,  which 
snow  that  his  claim  is  a  bad  one.     Of  course,  if  both  parties  know  al! 

VOL.  I.  —  19 


290      MILES   V.   NEW   ZEALAND  ALFOED   ESTATE   CO.         [CHAP.   1. 

the  facts,  and  with  knowledge  of  those  facts  obtain  a  compromise,  it 
cannot  be  said  that  that  is  dishonest.  That  is,  I  think,  the  correct  law, 
and  it  is  in  accordance  with  what  is  laid  down  in  Cook  v.  Wright,  1  B. 
&  S.  559  ;  and  Callisher  v.  Bisclioffshcim.  L.  R.  5  Q.  B.  449  ;  and  Ock- 
ford  V.  Barelli,  20  W.  R.  116.  What  was  stated  in  Cook  v.  Wright, 
1  B.  «&;  S.  569,  by  Lord  Blackburn  is  this:  "We  agree  that  unless 
there  was  a  reasonable  claim  on  the  one  side,  which  it  was  bo7idJide  in- 
tended to  pursue,  there  would  be  no  ground  for  a  compromise  ;  but  we 
cannot  agree  that  (except  as  a  test  of  the  reality  of  the  claim  in  fact) 
the  issuing  of  a  writ  is  essential  to  the  validity  of  the  compromise," 
Again,  what  his  Lordship  says  in  the  subsequent  case  of  Callisher  v. 
Bischoffsheim,  L.  R.  5  Q.  B.  452,  is  this :  "  If  we  are  to  infer  that  the 
plaintiff  believed  that  some  money  was  due  to  him,  his  claim  was 
honest,  and  the  compromise  of  that  claim  would  be  binding  and  would 
form  a  good  consideration,  although  the  plaintiff,  if  he  had  prosecuted 
his  original  claim,  would  have  been  defeated."  The  doubt  of  the 
Master  of  the  Rolls  seems  to  have  been  whether  a  compromise  would 
not  be  bad,  or  a  promise  to  abandon  a  claim  would  be  a  good  consider- 
ation if,  on  the  facts  being  elicited  and  brought  out,  and  on  the  decision 
of  the  court  being  obtained,  it  was  found  that  the  claim  which  was 
considered  the  consideration  for  the  compromise  was  a  bad  one.  But 
if  the  validity  of  a  compromise  is  to  depend  upon  whether  the  claim 
was  a  good  one  or  not,  no  compromise  would  be  effectual,  because  if  it 
was  afterwards  disputed,  it  would  be  necessary  to  go  into  the  question 
whether  the  claim  was  in  fact  a  good  one  or  not ;  and  I  consider,  not- 
withstanding the  doubt  expressed  by  the  Master  of  the  Rolls,  that  the 
doctrine  laid  down  in  Cook  v.  Wright  and  Callisher  v.  Bischoffsheim 
and  Ockford  v.  Barelli  is  the  law  of  this  court. 

Now,  was  there  here  an}-  claim  in  fact  made  on  behalf  of  the  com- 
pany against  Grant,  and  was  there,  in  fact,  anything  which  would  bind 
the  company  to  abandon  that  claim  ?  The  conclusion  at  which  I  have 
arrived  is,  that  there  is  no  evidence  on  which  we  ought  to  rely  that  there 
was  in  fact  a  claim  intended  to  be  made  against  Grant,  and,  in  my 
opinion,  on  the  evidence  before  us,  we  ought  not  to  arrive  at  the  con- 
clusion that  there  was  ever  intended  to  be  any  contract  by  the  company, 
much  less  that  there  was  in  fact  any  contract  binding  the  company  that 
that  claim  should  not  be  prosecuted,  and  should  be  given  up.  [His 
Lordship  alluded  shortly  to  the  facts  of  the  case,  and  continued  :]  Now, 
undoubtedly,  on  the  evidence,  several  of  the  shareholders  present 
at  the  general  meeting  of  the  15tb  of  March,  1883,  expressed  a  very 
hostile  feeling  against  Mr.  Grant,  who  had  sold  the  property  to  the 
company  ;  that  is  admitted  by  him,  and  is  in  my  opinion  clear.  But 
then  what  was  done?  There  is  nothing  at  all  on  the  face  of  this  letter 
of  guarantee,  as  I  have  already  stated,  which  says  that  it  was  given 
by  Grant  in  consequence  of  the  company  giving  up  any  claim  they 
might  have  against  him,  and  there  is  nothing  whatever  in  the  minutes 
of  the  board  which  states  in  fact  that  this  was  so,  nor  is  there  anythinjg 


SL:CT.    II.]      IVIILES   V.   NEW   ZEALAND   ALFOrwD   ESTATE   CO.         201 

After  that  time  in  the  minutes  of  the  board  of  directors  which  can  be 
referred  to  as  showing  an  agreement  bj-  them  to  give  up  any  claim  thev 
otherwise  intended  to  prosecute  against  him.  What  I  should  sa^-  was 
the  state  of  the  case  was  this  :  there  was  angry  feeling,  and  Mr.  Grant 
thought  it  might  result  in  proceedings  being  taken  against  him;  and, 
therefore,  what  he  considered  the  wisest  course  was  to  make  this  offer 
in  the  hope  and  expectation  that  he  would  keep  things  quiet,  and  let 
things  go  on  peaceably. 

I*sow,  in  my  opinion  a  simple  expectation,  even  though  realized, 
would  not  be  a  good  consideration  for  the  jyopaise  which  he  gave.  In 
order  to  make  a  good  consideration  for  the  orojnise  there  must  be  some^ 
thing  binding  done  at  the  time  by  the  other  party,  there  must  be  some- 
^hing_j3loving^TrOm  the  other  party  towards  the  person  giving  the 
promise.  In  my  opinion  to  make  a  good  consideration  for  this  contract 
it  must  be  shown  that  there  was  something  which  would  bind  the  com- 
pany not  to  institute  proceedings,  and  shown  also  that  in  fact  proceed- 
ings were  intended  on  behalf  of  the  company;  and,  in  my  opinion,  I 
cannot  come  to  the  conclusion  as  a  matter  of  fact  that  these  two  things 
existed.  It  is  true  that  directors  were  present  at  the  meeting,  and  that 
their  guarantee  was  entered  on  the  minutes,  but  although  this  was  the 
case,  it  cannot  in  m}-  opinion  be  considered  that  the  directors  b^'  being 
there  entered  into  an}-  contract  as  directors  not  to  enforce  the  claim  of 
the  company.  The  proper  mode  of  proving  any  agreement  made  by  the 
directors  would  be  the  production  of  evidence  of  its  having  been  made 
at  a  meeting  held  b}'  them  as  the  persons  having  the  conduct  of  the 
business  of  the  society.  No  doubt  they  might,  if  the}-  had  been  so 
minded,  at  a  meeting  of  the  board  agree  that  they  should  not  make  any 
claim  against  him  in  consideration  of  this  having  taken  place,  but  I 
find  nothing  of  that  kind. 

Again,  this  is  an  incorporated  compau}',  and  even  if  an}-  statement 
had  been  made  at  this  meeting  that  no  proceedings  should  be  taken,  yet 
to  bind  the  company  there  ought  to  be  something  done  b}'  wa}^  of  a 
resolution,  and  mere  statements  by  individual  members  that  they  were 
satisfied  with  this  guarantee  would  not  in  any  way  bind  the  company 
so  as  to  prevent  them  from  taking  proceedings  if  the}-  ever  intended  to 
do  so.  In  my  opinion  this  promise  was  given  in  the  expectation  that 
this  would  be  a  sop  to  the  angry  shareholders,  and  that  no  proceedings 
would  be  taken.  The  mere  fact  that  none  have  been  taken  will  not  in 
my  opinion  make  that  a  consideration,  unless  (putting  aside  the  ques- 
tion as  to  the  company  being  bound)  something  was  done  or  said  in 
such  a  way  as  to  be  the  action  or  saying  of  the  compan}-,  that  if  this 
guarantee  was  given  no  proceedings  would  be  taken.  Of  course  if  this 
corapau}^  were  an  individual,  and  the  individual  made  a  representation 
that  if  this  guarantee  was  given  he  would  take  no  proceedings,  that 
would  be  a  contract  binding  him,  but  in  m}-  opinion  if  a  company  is  to 
be  bound  it  ought  to  be  bound  bj'  some  more  formal  proceedings, 
either  by  the  action  of  the  directors  sitting  as  such,  or  by  something 
equivalent  to  a  resolution  of  the  shareholders  in  general  meeting. 


292       MILES   V.   NEW   ZEALAND   ALFORD   ESTATE   CO.         [CHAP.   I. 

BowEN,  L.  J.  Mr.  Davey  endeavored  to  support  the  decision 
appealed  from  on  a  question  of  fact  by  displacing  upon  the  evidence 
the  verdict  passed  by  Mr.  Justice  North,  which,  so  far  as  that  question 
of  fact  is  concerned,  was  against  him.  Therefore,  we  have  to  deter- 
mine whether  or  no  there  was  any  consideration  for  this  guarantee, 
and  it  is  upon  that  point  that  I  am,  with  great  regret,  obliged  to  state 
that  my  opinion  is  at  variance  with  the  view  at  which  Lord  Justice 
Cotton  has  arrived.  The  inquir}-  whether  there  was  or  was  not  con- 
sideration for  this  guarantee  renders  it  necessary  to  say  some  words 
upon  the  law,  and  then  to  applj'  the  law  to  the  question  of  fact. 

Speaking  broadly,  what  has  to  be  determined  is,  in  my  opinion, 
whether  there  was  at  a  critical  moment  any  forbearance  to  press  a  real 
claim  on  the  part  of  the  coinpanj',  or  of  the  directors  of  the  company, 
who  had  ample  powers  under  their  articles  of  association  to  act  for  the 
compan^y,  and,  if  so,  whether  such  forbearance  was  brought  about  b}' 
the  express  or  implied  request  of  Mr.  Grant,  and  in  consideration  of 
his  guarantee.  A  valuable  consideration  ma}',  of  course,  either  consist 
of  some  right,  interest,  profit,  or  benefit  which  accrues  to  one  party,  or 
some  forbearance,  or  detriment,  or  loss,  or  responsibility,  which  is 
given  to  or  undertaken  by  the  other.  We  have  to  see  here  in  the  first 
place  whether  there  was  forbearance  promised,  in  which  case  the 
promise  would  be  the  consideration  for  the  guarantee ;  or  whether 
there  was  an  actual  forbearance  given  at  the  request  of  the  guarantor 
and  in  return  for  something.  The  two  views  run  very  close  together. 
If  the  directors,  in  consideration  of  this  guarantee,  made  an  actual 
agreement  to  forbear,  the}'  really  took  the  agreement  in  accord  and 
satisfaction  of  any  claims,  if  there  were  claims,  and  beyond  that  agreed 
not  to  prosecute  the  question  whether  there  were  any  ;  but  such  an 
agreement  as  that  need  not  be  in  writing.  It  seems  to  me  there  is  no 
magic  at  all  in  formalities,  and  that  there  would  be  ample  evidence  of 
such  an  agreement,  if  this  guarantee  to  the  knowledge  of  both  parties 
was  given  and  accepted  upon  the  understanding  that  no  proceedings 
should  be  instituted.  But  I  do  not  accept  the  proposition  that  this 
guarantee  cannot  be  effectual  and  supported  by  consideration  unless 
there  is  at  the  moment  it  was  given  something  to  bind  the  company. 
If  the  guarantee  were  given  on  the  condition  and  on  the  contingency 
that  there  should  be  forbearance,  and  was  taken  upon  that  condition, 
and  upon  that  contingency,  and  the  contingency  afterwards  happened, 
then  the  forbearance  when  given,  being  at  the  request  expressed  or 
implied  of  the  guarantor,  would  furnish  an  implied  consideration  for 
the  guarantee  which  had  already  been  given.  That  is,  I  think,  no  new 
law.  In  Oldershaw  v.  King,  2  H.  &  N.  399,  517,  520,  there  was  a 
guarantee  given  to  the  following  effect:  "I  am  aware,"  said  the 
guarantor,  "that  my  uncles  Messrs.  J.  &  J.  F.  King,  stand  consider- 
ably indebted  to  you  for  professional  business,  and  for  cash  lent  and 
advanced  to  them,  and  that  it  is  not  in  their  power  to  pay  you  at 
present ;  and  as  in  all  probability  they  will  become  further  indebted  to 
you,  though  I  by  no  means  intend  that  this  letter  shall  create  or  impl^ 


SECT,    ir.]       MILES    V.    NEW    ZEALAND    ALFORD    ESTATE    CO.        293 

any  obligation  on  j'our  part  to  increase  j'our  claim  against  them,  I  am 
willing  to  bear  you  harmless  against  an}'  loss  arising  out  of  the  past 
and  future  transactions  between  you  and  mj'  said  uncles  to  a  certain 
extent ;  and  therefore  in  consideration  of  your  forbearing  to  press  them 
for  the  immediate  payment  of  the  debt  now  due  to  you,  I  hereb}-  en- 
gage and  agree  to  guarantee  you  the  payment  of  any  sum  they  may  be 
indebted  to  you  upon  the  balance  of  accounts  between  you  at  any  time 
during  the  next  six  years,  to  the  extent  of  £1,000,  whenever  called 
upon  by  30U  to  pay  the  same,  and  after  twelve  calendar  months'  previ- 
ous notice."  In  that  case  Erie,  J.,  expressed  himself  in  the  following 
language  :  "  Looking  at  the  whole  letter,  and  the  circumstances  under 
which  it  was  written,  and  considering  the  importance  of  further  ad- 
vances, I  come  to  the  conclusion  that  the  consideration  contemplated 
was  that  further  advance  should  be  made,  and  time  given  b}^  the  credi- 
tor before  he  would  press  for  the  payment  of  the  existing  debt.  Though 
the  contract  did  not  bind  the  creditor  to  make  further  advances,  or  to 
give  time  unless  he  chose  to  do  so,  it  is  clear  that,  if  he  did  make  the 
advances  and  did  give  time,  that  which  was  contingent  at  the  time  when 
the  instrument  was  written  became  an  absolute  and  binding  contract." 
The  same  principle  was  applied  in  the  case  of  the  Alliance  Bank  v. 
Broom,  2  Dr.  &  Sm.  289.  "  It  appears  to  me,"  said  the  Vice-Chan- 
cellor  (2  Dr.  &  Sm.  292),  "  that  when  the  plaintiffs  demanded  payment 
of  their  debt,  and,  in  consequence  of  that  application,  the  defendant 
agreed  to  give  certain  securit}-,  although  there  was  no  promise  on  the 
part  of  the  plaintiffs  to  abstain  for  any  certain  time  from  suing  for  the 
debt,  the  effect  was  that  the  plaintiffs  did  in  effect  give,  and  the  defend- 
ant received,  the  benefit  of  some  degree  of  forbearance,  — not  indeed 
for  an}'  definite  time,  but  at  all  events  some  extent  of  forbearance." 
So  it  will  be  sufficient  here  that  the  directors  did  forbear,  if  their  for- 
bearance was  at  the  request,  expressed  or  implied,  of  the  guarantor  and 
in  consequence  of  his  guarantee  being  given  ;  and  it  seems  to  me  there 
is  no  sort  of  necessity  to  discover  language  of  an}'  particular  form,  or 
writing  of  any  particular  character,  embodying  the  resolution  of  the 
directors.  We  must  treat  the  thing  in  a  business  way,  and  draw  an  infer- 
ence of  fact  as  to  what  the  real  nature  of  the  transaction  was  as  between 
business  men.  But  an  attempt  was  made  to  show^  that  the  forbearance 
was  worth  nothing.  Of  course  forbearance  of  a  non-existing  claim 
would  not  be  forbearance  at  all.  We  were  referred  to  the  language  of 
the  Master  of  the  Rolls  in  the  case  of  Ex  parte  Banner,  17  Ch.  D.  480,^ 

1  "Ent  then  two  cases  were  cited.  Reliance  is  placed  on  Callisher  v.  Bischoffsheim, 
Law  Rep.  5  Q.  B.  449,  in  which  Lord  Chief  .Justice  Cockburn  said  :  '  The  authorities 
clearly  establish  that  if  an  agreement  is  made  to  compromise  a  disputed  claim,  forbear- 
ance to  sue  in  respect  to  that  claim  is  a  good  consideration.'  But  in  a  subsequent  part 
of  his  judgment  he  said  :  '  When  such  a  person  forbears  to  sue  he  gives  up  what  he 
believes  to  be  a  right  of  action.'  Therefore  it  is  not  enough  that  the  action  is  brought 
to  settle  a  disputed  claim  ;  it  must  be  a  claim  by  a  person  who  believes  he  has  a  right 
of  action.  But  in  the  present  case,  I  say  that,  although  Mr.  Shell  believed  he  would 
win  the  cause,  he  never  did  believe  that  he  had  a  right  of  action  :  he  knew  that  he  had 


204        MILES    V.    NE^Y    ZEALAND    ALFOKD    ESTATE    CO.  1, 

which  seems  to  throw  doubt  upon  the  doctrine  which  has  more  than 
once  been  hiid  down  in  the  courts  of  common  law,  and  finall}'  in  th« 
well-known  case  of  Culli.sher  o.  Bischoffsheim,  Law  Rep.  5  Q.  B.  449. 
It  seems  to  me  that  if  an  intending  litigant  bona  fide  forbears  a  right 
to  litigate  a  question  of  law  or  fact  which  it  is  not  vexatious  or  frivolous 
to  litigate,  he  does  give  up  something  of  value.  It  is  a  mistake  to 
suppose  it  is  not  an  advantage  which  a  suitor  is  capable  of  appreciating 
to  be  able  to  litigate  his  claim,  even  if  he  turns  out  to  be  wrong.  It 
seems  to  me  it  is  equally  a  mistake  to  suppose  that  it  is  not  sometimes 
a  disadvantage  to  a  man  to  have  to  defend  an  action  even  if  in  the  end 
he  succeeds  in  his  defence  ;  and  I  think  therefore  that  the  reality  of  the 
claim  which  is  given  up  must  be  measured,  not  by  the  state  of  the  law 
as  it  is  ultimately  discovered  to  be,  but  by  the  state  of  the  knowledge 
of  the  person  who  at  the  time  has  to  judge  and  make  the  concession. 
Otherwise  3-ou  would  have  to  try  the  whole  cause  to  know  if  the  man 
had  a  right  to  compromise  it,  and  with  regard  to  questions  of  law  it 
is  obvious  you  could  never  safely  compromise  a  question  of  law  at  all. 
With  regard  to  the  observations  of  the  Master  of  the  Rolls  in  JEx  parte 
Banner  I  should  like  to  point  out  in  respect  to  Callisher  v.  Bischoff- 
sheim in  the  first  place  that  whatever  be  the  objection  taken  to  the 
language  of  the  court  in  that  case,  in  any  point  of  view  the  case  was 
rightly  decided.  The  plea  there  onh'  denied  the  existence  of  the  debt, 
and  left  it  on  the  record  undisputed  that  the  debt  might  have  been  put 
forward  reasonably  as  a  substantial  claim.  But  with  regard  to  the 
language  of  the  court  in  Callisher  v.  Bischoffsheim,  Law  Rep.  5  Q.  B. 

none.  Therefore,  even  if  that,  which  was  not  a  case  in  bankruptcy,  could  apply  to  a 
case  iu  bankruptcy,  it  does  not  govern  the  present  case. 

Eut,  whenever  a  similar  case  arises,  I  think  it  will  have  to  be  carefully  considered 
whether  tlie  decision  iu  Callisher  v.  Bischoffsheim,  Law  Rep.  5  Q.  B.  449,  can  be  sup- 
ported, and  whether,  in  order  to  support  a  compromise  of  an  action,  it  is  not  necessary 
to  show,  not  only  that  the  plaintiff  believed  that  he  had  a  good  cause  of  action,  but 
that  the  circumstances  did  in  fact  raise  some  doubt  whether  there  was  or  was  not  a 
good  cause  of  action  ;  and  I  venture  to  doubt  whether,  if  there  was  clearly  and  obvi- 
ously no  «iuse  of  action,  the  mere  belief  of  the  parties  that  there  was  would  support 
the  compromise.  It  is  true  that  the  subsequent  case  of  Ockford  v.  Barelli,  20  W.  R. 
116  (if  that  be  also  held  to  be  good  law),  is  an  authority  against  this  view,  because  in 
it  there  could  not  possibly  be  a  doubt  that  there  was  no  cause  of  action.  But  I  take  it 
that  Ockford  v.  Barelli  was  decided  upon  the  authority  of  Callisher  v.  Bischoffsheim, 
adopting  the  view  that  the  passage  which  I  have  read  from  the  earlier  part  of  the 
judgment  of  Lord  Chief  Justice  Cockburn  was  the  ground  of  the  decision.  Of  course, 
if  it  were  so  taken,  the  court  in  the  later  case,  being  a  court  of  co-ordinate  jurisdic- 
tion, was  bound  by  the  decision  in  the  earlier  case  ;  but  then,  if  the  first  case  falls,  the 
second  would  fall  with  it.  However,  neither  case  seems  to  me  to  be  very  material  in 
the  present  case,  for  neither  of  them  was  a  case  in  bankruptcy.  In  my  view  the  judg- 
ment in  the  present  case  was  a  dishonest  judgment,  obtained  by  dishonest  pressure, 
not  because  there  was  any  doubt  about  the  cause  of  action,  not  even  because  either 
party  believed  that  there  was  any  doubt  about  the  cause  of  action,  but,  both  parties 
knowing  that  there  was  no  real  cause  of  action,  the  one  endeavored  to  oppress  the 
other  by  reason  of  that  other's  infamy  known  to  him,  and  the  other  yielded,  not 
because  he  believed  there  was,  or  doubted  whether  there  was,  a  cause  of  action,  but 
because  he  did  not  dare  to  face  tlie  consequences  of  his  own  infamy." 


GECT.   n.]       MILES   V.   NEW   ZEALAND   ALFORD   ESTATE   CO.        295 

4:49,  I  confess  it  seems  to  me  that  the  language  of  Lord  Blackburn  was 
correct,  that  the  decision  in  Ockford  v.  Barelli,  20  W.  R.  116,  was  right, 
and  that  the  language  in  Cook  v.  Wright,  1  B.  &  S.  559,  is  equally-  un- 
impeachable. When  the  Master  of  the  Rolls  in  J^x  parte  Banner,  17 
Ch.  D.  480,  says  he  doubts,  if  there  was  really-  and  obvious!}-  no  cause 
of  action,  whether  the  belief  of  the  parties  that  there  was  would  be 
sufficient  ground  for  a  compromise,  I  agree  if  by  that  he  means  there 
must  be  a  real  cause  of  action, —  that  is  to  sa}',  one  that  is  bonxT.  Jide, 
and  not  frivolous  or  vexatious;  but  I  do  not  agree  if  he  means  by  a 
real  cause  of  action  some  cause  of  action  which  commends  itself  to  the 
ultimate  reasoning  of  the  tribunal  which  has  to  consider  and  deter- 
mine the  case. 

Now  that  being  the  law  which  I  think  has  to  be  applied  to  the  pres- 
ent case,  I  come  next  to  the  facts.  Was  there  here  forbearance  of  a 
bond  Jide  claim?  I  cannot  help  beginning  the  observations  which  I 
make  upon  the  facts  b}-  saying  that  it  seems  to  me  it  is  too  late  for  the 
respondent  to  suggest  that  the  claim  put  forward  by  the  company  is 
not  bond  Jide  when  he  deliberately  abstains  from  cross-examining  the 
secretary  upon  his  affidavit.  What  are  the  alternative  views  between 
which  we  have  to  decide  as  to  the  consideration  given  for  this  document  ? 
A  vendor  and  promoter,  or  alleged  promoter  of  a  company  (Mr.  Grant 
denies  in  his  affidavit  that  he  took  an  active  part  in  the  promotion  of  the 
company),  the  vendor  at  all  events  to  a  company  which  was  formed  for 
the  purpose  of  purchasing  from  him,  who  is  also  a  director  and  chair- 
man of  the  company,  at  a  stormy-  meeting  gives  a  document  b}'  which 
he  professes  to  incur  serious  liability  to  the  company,  and  gives  it  for 
no  consideration  whatever  except  the  hope  of  pacifying  people  who 
were  at  the  meeting  of  the  shareholders  of  the  compan}-.  That  is  one 
view.  The  other  is  that  he  really  gave  this  document  as  a  business 
transaction.  I  read  [Mr.  Justice  North's]  judgment  as  finding  that 
proceedings  had  been  threatened,  that  Mr.  Grant  knew  that  they  had 
been  threatened,  that  he  gave  the  guarantee  in  order  to  put  an  end 
to  them,  and  that  the  proceedings  were  dropped  in  consequence  of  his 
giving  that  undertaking.  If  that  is  a  true  view  of  the  finding  of  Mr. 
Justice  North,  I  should  say  that  I  agree  with  it  as  far  as  I  can  upon 
these  imperfect  materials,  although  it  is  always  difficult,  if  j'our  mate- 
rials are  not  complete,  to  come  to  a  right  conclusion.  I  should  say  I 
agree  with  him,  but,  at  all  events,  if  I  did  not  agree  with  him  I  should 
feel  mj'self  unable  to  reverse  his  decision. 

Fry,  L.  J.  .  .  .  The  repl}'  in  the  first  place  alleged  that  no  considera- 
tion was  given  for  the  guarantee,  and  that  was  met  by  the  rejoinder  which 
stated  with  precision  the  consideration  upon  which  the  company  relied. 
[His  Lordship  then  read  the  rejoinder  and  continued  :]  Now  it  is  to  be 
observed  the  thing  relied  on  is  the  abandonment  and  giving  up,  in  fact 
the  release  of  the  claims  of  the  company  and  of  the  individual  share- 
holders. The  case  which  was  made  was  not  one  of  a  request  for  for- 
bearance for  a  limited  time  or  for  any  sftated  time,  followed  bj'  actual 


296      MILES   V.   NEW   ZEALA.ND   ALFORD   ESTATE   CO.        [CHAP.   I. 

forbearance.  In  this  case  we  are  told,  and  no  doubt  accuratel}',  that 
these  pleadings  were  put  in  after  litigation  as  to  whether  the  point  should 
be  allowed  to  be  raised.  The}'  were  put  in  more  than  a  year  after  the 
defence  was  put  in,  and  therefore  it  is  impossible  to  doubt  that  the  state- 
ment in  the  rejoinder  is  the  well-considered  allegation  of  the  company 
as  to  the  consideration  upon  which  they  think  themselves  entitled  to  rely. 

Now,  the  next  inquiry  which  arises  is  this,  what  is  the  law  which 
bears  upon  this  question?  and  I  am  glad  to  think  that  whatever  differ- 
ence there  may  be  between  us  upon  other  questions,  there  is  no  differ- 
ence as  to  the  general  principle  of  law  applicable  to  this  case.  In  my 
opinion,  when  a  real  claim  has  been  made  and  there  is  a  bond  fide  com- 
promise, that  is  sufficient  consideration.  I  think  the  law  was  concisel}' 
stated  in  the  case  of  Cook  v.  Wright,  1  R.  &  S.  559,  570,  when  the 
court,  dealing  with  the  case  before  them,  said:  "The  real  considera- 
tion therefore  depends,  not  on  the  actual  commencement  of  a  suit, 
but  on  the  reality  of  the  claim  made  and  the  bona  fides  of  the  com- 
promise." I  am  quite  aware  that  the  Master  of  the  Rolls  has  expressed 
certain  doubts  as  to  whether  there  must  not  be  in  the  mind  —  I  suppose 
of  the  court  which  ultimately  tries  the  question  —  a  doubt  as  to  the  con- 
test between  the  parties  ;  but  I  cannot  follow  the  learned  Master  of  the 
Rolls  in  that  view.  I  do  not  think  the  polic}'  of  the  courts  is  to  pre- 
vent real  bond  fide  compromises  of  real  and  bonA  fide  claims.  When 
there  is  a  pending  action  it  is  eas^'  to  suppose  that  the  giving  up  of  that 
action  is  the  consideration  for  the  compromise.  Again,  when  there  is 
a  real  cause  of  action  slight  evidence  of  the  claim  being  made  may  be 
admissible  ;  and  again,  when  there  is  a  real  belief  in  a  cause  of  action 
on  both  sides  slight  evidence  of  the  claim  being  made  may  go  in  sup- 
port of  the  reality  of  the  claim.  But  in  m}'  judgment  none  of  those  cir- 
cumstances can  be  laid  down  as  absolutel}'  essential  to  the  validit}'  of  a 
compromise.  Of  course  if  neither  party  believes  in  the  reality  of  the  claim, 
it  is  obvious  it  is  a  sham.  I  do  not  desire  to  say  anything  more  than 
that  in  my  judgment  when  a  real  claim  is  made  and  is  bond  fide  com- 
promised, that  is  ample  consideration. 

Now  in  the  present  case  was  there  any  real  cause  of  action  or  any 
evidence  of  belief  on  the  part  of  the  company  that  there  was  any  cause 
of  action?  Or,  again,  was  any  claim  really  made  against  Mr.  Grant  by 
the  company?  [His  Lordship  then  referred  to  the  evidence  on  these 
points  and  came  to  the  conclusion  that  there  had  been  no  misrepresen- 
tation by  Grant,  no  real  belief  of  the  company  or  its  officers  of  any 
real  cause  of  action  against  him,  and  no  bond  fide  claim  on  the  loth  of 
March  pending  by  the  company  against  Grant.  His  Lordship  then 
continued:]  But  was  there  an}'  claim  b}'  a  shareholder?  There  is  not 
the  slightest  trace  of  that.  It  is  not  suggested  that  an}^  shareholder 
had  been  advised  to  make  an}'  claim,  or,  except  the  angry  words  that 
passed  at  the  meeting,  that  he  had  ever  asserted  a  claim  ;  and  I  am 
bound  to  say  I  do  not  look  upon  the  angry  words  which  passed  upon 
that  occasion  as  anything  serious,  as  anything  indicating  a  cause  of 


SECT.    II.]       IVULES   V.    NEW    ZEALAXD   ALEOED    ESTATE    CO.        297 

action,  or  the  existence  of  a  belief  of  a  cause  of  action.  But  supposing 
tliere  was  this  real  claim,  was  there,  to  use  the  language  of  the  plead- 
ings, any  agreement  on  the  part  of  the  company  and  the  shareholders 
to  put  an  end  to  the  contemplated  proceedings  and  to  give  up  their 
claim?  Now,  if  there  was  an}'  such  agreement  it  is  ver}'  remarkable 
that  the  document  is  absolutely  silent  about  it.  It  was  suggested  it 
would  be  unpleasant  to  Mr.  Grant  to  insert  words  indicating  that  there 
was  an}'  such  claim,  but  an\'  such  sensibilit}'  was  out  of  place  after  the 
angry  discussion  which  had  occurred  ;  and  general  words  might  have 
been  inserted  which  would  not  wound  the  sensibilit}'  of  the  most  sen- 
sitive man,  and  yet  might  have  the  effect  of  showing  that  the  directors 
intended  to  insist  upon  their  rights.  But  not  only  is  there  no  mention 
of  it  in  the  agreement  itself,  there  is  no  mention  of  it  in  the  minute 
book  which  contains  the  angry  discussion.  Lastly,  it  seems  to  me 
strange  if  the  company  had  intended  to  give  up  their  claims,  that  no 
resolution  was  passed  at  the  meeting  to  express  the  desire  of  the  meet- 
ing that  the  company  should  give  them  up.  I  think,  therefore,  the  cir- 
cumstances of  the  case  are  very  strong  to  show  tliat  there  was  no 
intention  whatever  on  the  part  of  the  company  to  abandon  any  claim 
they  might  have.  With  regard  to  the  individual  shareholders,  can  it  be 
said  that  they  by  being  present  at  the  meeting,  some  of  them  silent, 
not  taking  part  in  the  discussion,  were  giving  up  their  individual  causes 
of  action,  supposing  they  existed?  And  observe,  giving  them  up  whilst 
the  shareholders  who  were  not  at  the  meeting  would  retain  their  causes 
of  action,  if  they  had  any.  How  can  it  be  said,  therefore,  that  there  was 
any  agreement  to  give  up  the  claims  of  all  the  shareholders  for  whose 
benefit  the  agreement  was  entered  into?  It  seems  to  me  that  there  is 
strong  evidence  to  show  that  there  was  no  intention  on  the  part  of  the 
shareholders  to  give  up  their  rights.  Therefore,  looking  at  the  circum- 
stances of  the  case  it  appears  to  me  impossible  to  conclude  that  the 
shareholders  intended  to  give  up  anything,  or  that  the  company  in- 
tended to  give  up  anything.  But  then  it  it  is  said  that  Mr.  Redmayne's 
affidavit  is  piecise,  and  that  as  Mr.  Redmayne  was  not  cross-examined 
it  is  impossible  for  this  court  to  come  to  a  conclusion  different  from 
that  of  Mr.  Justice  North.  Now  I  confess  that  lias  been  to  my  mind 
the  principal  question  of  difficult^'  in  this  case,  and  I  should  have  been 
better  pleased  if  Mr.  Redmayne  had  been  cross-examined.  At  the  same 
time  it  must  be  borne  in  mind  that  the  onus  of  proof  is  on  those  wtio 
make  an  assertion.  I  do  not  impute  bad  faith  to  Mr.  Redmayne,  but 
his  statements  are  not  literally  accurate.  [His  Lordship  then  referreii 
to  this  affidavit  and  came  to  the  conclusion  that  it  did  not  contain  state- 
ments of  facts  sufficient  to  support  the  contention  that  has  been  made. 
He  then  continued  :] 

Now  another  difficulty  which  must  be  referred  to  is  this,  that  the 
abandonment  of  claims  mentioned  in  the  affidavit  by  the  company  is 
their  abandonment,  if  any  such  there  was,  by  any  incorporated  soci- 
ety, a  body  whose  proceedings  are  regulated  by  the  requirements  of  tlie 


208       MILES   V.   NEW    ZEALAND   ALFORD   ESTATE   CO.         [CKAP.    I 

Companies  Act,  and  who  must  proceed  with  a  certain  amount  of  regu 
larity  and  formality.  It  is  to  be  observed,  as  I  have  already  said,  there 
is  no  document  on  the  part  of  the  company  indicating  any  intention  tc 
give  up  their  claim.  There  appears  to  have  been  no  resolution  of  the 
directors  to  give  it  up,  there  is  no  discussion  as  to  whether  they  shall 
give  it  up,  there  is  no  resolution  at  the  meeting  of  the  loth  of  March  as 
to  whether  they  shall  give  it  up ;  and  that  to  my  mind  is  strong  to 
show  that  there  was  no  intention  to  give  it  up.  I  think,  therefore,  it  is 
impossible  that  the  company  can  be  bound  by  such  an  irregular  discus- 
sion as  seems  to  have  taken  place  on  the  loth  of  March.  Lastly,  i1 
has  been  urged  upon  us  that  the  conduct  of  both  the  parties  showed 
they  thought  that  the  consideration  was  sufficient.  It  is  said  that  Mr. 
Grant  treated  his  undertaking  as  serious.  If  he  was  a  man  of  honor  he 
would  have  treated  it  serioush' ;  in  all  probability  if  his  affairs  had  not 
gone  into  liquidation  he  intended  to  honor,  and  would  have  honored 
that  undertaking,  which,  whatever  its  legal  force,  was  binding  upon 
him  in  honor.  I  think  the  true  result  of  the  evidence  is  to  show  that 
there  was  an  expectation  in  the  mind  of  Mr.  Grant  that  if  he  gave  this 
document  no  proceedings  would  be  taken  against  him,  that  there  was 
an  expectation  in  the  minds  of  many  of  those  who  were  present,  if  they 
got  this  dividend  the}'  would  take  no  proceedings ;  but  it  appears  to 
me  it  is  not  right  or  competent  for  the  court  to  turn  an  expectation  into 
a  contract,  and  that  is  what  I  think  v/e  should  do  if  we  gave  effect  to 
this  as  a  valid  contract. 

The  result  is,  the  majority  of  the  court,  while  difTei'ing  from  the  judge 
on  both  the  points,  affirms  the  decree. 

Their  Lordships  then  made  a  declaration  that  the  plaintiff  was  en- 
titled to  a  charge  upon  the  shares  of  Grant,  free  from  any  claim  b}-  the 
defendant  company  under  the  letter  of  guarantee  of  the  15th  of  March, 
1883,  and  dismissed  the  appeal  with  costs. ^ 

1  Portions  of  the  opinions  in  which  the  Statute  of  Frauds  was  held  inapplicable, 
and  in  which  it  was  lield  that  if  the  company  had  a  valid  claim  that  claim  was  entitled 
to  priority  over  the  plaintiff's  claim,  are  omitted.  Some  other  abbreviations  of  the  case 
have  been  made. 

In  America  some  courts  have  shown  a  disposition  to  follow  the  doctrine  of  the 
late  English  decisions.  Union  Bank  v.  Geary,  5  Pet.  99;  Baldwin  v.  Central  Bank, 
67  Pac.  Rep.  (Col.  App.) ;  Morris  v.  Muuroe,  30  Ga.  630  ;  Hayes  v.  Massachusetts  Co., 
125  111.  625,  639;  Ostrander  v.  Scott,  161  111.  339;  Murphy' u.  Murphy,  84  111.  App. 
292  (compare  Herbert  v.  Mueller,  83  111.  App.  391);  Prout  v.  Pittsfield  Fire  District, 
154  Mass.  450;  Dunbar  v.  Dunbar,  180  Mass.  170;  Dailey  i;.  King,  79  Mich.  568; 
Leeson  ?-.  Anderson,  99  Mich.  247  ;  Demars  t'.  Musser-Santry  Co.,  37  Minn.  418  ;  Han- 
sen V.  Gaar,  63  Minn.  94  ;  Grandin  ;;.  Grandin,  49  N.  J.  L.  508;  Wahl  v.  Barnura,  116 
N.  Y.  87  ;  Zoebisch  v.  Van  Minden,  120  N.  Y.  406  ;  Di  lorio  v.  Di  Brasio,  21  K.  1. 208  ; 
Bellows  V.  Sowles,  55  Vt.  391  ;  Citizens'  Bank  v.  Babbitt,  71  Vt.  182  ;  Hewett  v.  Cur- 
rier, 63  Wis.  386. 

The  definition  given  by  other  courts  seems  to  require  the  claim  forborne  to  be  at 
least  reasonably  doubtful  in  fact  or  law  in  order  to  make  the  forbearance  or  promise 
to  forbear  a  good  consideration.  Stewart  v.  Bradford,  26  Ala.  410  ;  Ware  v.  Morgan, 
67  Ala.  461  ;  Richardson  v.  Comstock,  21  Ark.  69  ;  Russell  y  Daniels,  5  Col.  App. 
224  ;  Mulholland  v.  Bartlett,  74  111.  58  ,  Bates  v.  Sandy,.27  111.  App.  552  (see  later 
Illinois  cases  supra);  U.  S.  Mortgage  Co.  v.   Henderson,    111   Ind.  24;  Sweitzer  v. 


SECT.  II.]  STRONG  V.    SHEFFIELD.  299 


BENJAMIN    B.    STRONG,    Appellant,    v.    LOUISA   A. 
SHEFFIELD,    Respondekt. 

New  York  Coubt  of  Appeals,  December  17,   1894- 
Januaby  15,   1895. 

{RepoHed  in  144  New  York,  392.] 

Andrews,  C.  J.  The  contract  between  a  maker  or  indorser  of  a 
promissory  note  and  the  paj^ee  forms  no  exception  to  the  general  rule 
that  a  promise,  not  supported  by  a  consideration,  is  nudum  pactum. 
The  law  governing  commercial  paper  which  precludes  an  inquiry  into 
the  consideration  as  against  bona  fide  holders  for  value  before  matur- 
ity, has  no  application  where  the  suit  is  between  the  original  parties 
to  the  instrument.  It  is  undisputed  that  the  demand  note  upon  which 
the  action  was  brought  was  made  by  the  husband  of  the  defendant 
and  indorsed  by  her  at  his  request  and  delivered  to  the  plaintiff,  the 
payee,  as  security  for  an  antecedent  debt  owing  by  the  husband  to 
the  plaintiff.  The  debt  of  the  husband  was  past  due  at  the  time,  and 
the  only  consideration  for  the  wife's  indorsement,  which  is  or  can  be 
claimed,  is  that  as  part  of  the  transaction  there  was  an  agreement 
by  the  plaintiff  when  the  note  was  given  to  forbear  the  collection  of 
the  debt,  or  a  request  for  forbearance,  which  was  followed  by  for- 
bearance for  a  period  of  about  two  years  subsequent  to  the  giving  of 
the  note.  There  is  no  doubt  that  an  agreement  by  the  creditor  to 
forbear  the  collection  of  a  debt  presently  due  is  a  good  consideration 
for  an  absolute  or  conditional  promise  of  a  thii'd  person  to  pay  the 
debt,  or  for  any  obligation  he  may  assume  in  respect  thereto.  Nor 
is  it  essential  that  the  creditor  should  bind  himself  at  the  time  to  for- 
bear collection  or  to  give  time.  If  he  is  requested  by  his  debtor  to 
extend  the  time,  and  a  third  person  undertakes  in  consideration  of 
forbearance  being  given  to  become  liable  as  surety  or  otherwise,  and 
the  creditor  does  in  fact  forbear  in  reliance  upon  the  undertaking, 
although  he  enters  into  no  enforceable  agreement  to  do  so,  his  acquies- 
cence iu  the  request,  and  an  actual  forbearance  in  consequence  thereof 
for  a  reasonable  time,  furnishes  a  good  consideration  for  the  col- 
lateral undertaking.     In  other  words,  a  request  followed  by  perform- 

Heasly,  13  Ind.  App.  567  (compare  Moon  v.  Martin,  122  Ind.  211);  Tucker  v.  Ronk, 
42  la.  80 ;  Peterson  ;•.  Breitag,  88  la.  418  ;  (see  Richardson  Co.  v.  Hampton,  70  Ta. 
573);  Price  i-.  First  Nat.  Bank,  62  Kan.  743;  Cline  v.  Templeton,  78  Kv.  550;  Mills 
V.  O'Daniel,  62  S.  W.  Rep.  1123  (Ky.) ;  Schroeder  v.  Fink,  60  Md.  436  ;  Emmittsbur^: 
V.  Donoghue,  67  Md.  383  ;  Palfrey  v.  Portland,  &c.  R.  R.  Co.,  4  Allen,  55.  (See  later 
Massachusetts  cases,  supra) ;  Taylor  v.  "Weeks,  88  N.  W.  Rep.  466  (Mich.) ;  Foster  v. 
Metts,  55  Miss.  77 ;  Gunning  v.  Royal,  59  Miss.  45 ;  Long  v.  Towl,  42  Mo.  545  ;  Corhyn 
V.  Brokraeyer,  84  Mo.  App.  649 ;  Kidder  v.  Blake,  45  N.  H.  530.  (See  Pitkin  r.  Noyes, 
48  N.  H.  294) ;  0.  &  C.  R.  R.  Co.  v.  Potter,  5  Oreg.  228  ;  Fleming  v.  Ramsey.  46'Pa. 
252 ;  Sutton  v.  Dudley,  193  Pa.  194  ;  Warren  v.  Williamson,  8  Baxter,  427 ;  Davisson 
«;.  Ford,  23  W.  Va.  61*7.    (See  Billingsley  v.  Clelland,  41  W.  Va.  234). 


coo  STRONG   V.    SHEFFIELD.  [CHAP.    I. 

ance  is  sufBcieut,  and  mutual  promises  at  the  time  are  not  essential, 
unless  it  was  the  understanding  that  the  promisor  was  not  to  be 
bound,  except  on  condition  that  the  other  party  entered  into  an  im- 
mediate and  reciprocal  obligation  to  do  the  thing  requested.  Mor- 
ton V.  Burn,  7  A.  &.  E.  19;  Wilby  v.  Elgee,  L.  R.  10  C.  P.  497; 
King  V.  Upton,  4  Maine,  387;  Leake  on  Con.  p.  54;  Am.  Lead.  Cas. 
vol.  2,  p.  96  et  seq.  and  eases  cited. ^  The  general  rule  is  clearlj^ 
and  in  the  main  accurately,  stated  in  the  note  to  Forth  v.  Stanton 
(1  Saund.  210,  note  6).  The  learned  reporter  says:  "And  in  all  cases 
of  forbearance  to  sue,  such  forbearance  must  be  either  absolute  or  for 
a  definite  time,  or  for  a  reasonable  time;  forbearance  for  a  little,  or 
for  some  time,  is  not  sufficient."  The  only  qualification  to  be  made 
is  that  in  the  absence  of  a  specified  time  a  reasonable  time  is  held 
to  be  intended.  Oldershaw  v.  King,  2  H.  &  N.  517;  Calkins  v. 
Chandler,  36  Mich.  320.^  The  note  in  question  did  not  in  law  ex- 
tend the  payment  of  the  debt.  It  was  paj'able  on  demand,  and 
although  being  payable  with  interest  it  was  in  form  consistent  with 
an  intention  that  payment  should  not  be  immediately  demanded,  yet 
there  was  nothing  on  its  face  to  prevent  an  immediate  suit  on  the 
note  against  the  maker  or  to  recover  the  original  debt.  Merritt  v. 
Todd,  23  N.  Y.  28;  Shutts  v.  Fingar,  100  id.  539. 

In  the  present  case  the  agreement  made  is  not  left  to  inference, 
nor  was  it  a  case  of  request  to  forbear,  followed  by  forbearance,  in 
pursuance  of  the  request,  without  any  promise  on  the  part  of  the 
creditor  at  the  time.  The  plaintiff  testified  that  there  was  an  express 
agreement  on  his  part  to  the  effect  that  he  would  not  pay  the  note 
awa^',  nor  put  it  in  any  bank  for  collection,  but  (using  the  words  of 
the  plaintiff)  "I  will  hold  it  until  such  time  as  I  want  my  money,  I 
will  make  a  demand  on  you  for  it."  And  again:  "No,  I  will  keep 
it  until  such  time  as  I  want  it."  Upon  this  alleged  agreement  the 
defendant  indorsed  the  note.  It  would  have  been  no  violation  of  the 
plaintiff's  promise  if,  immediately  on  receiving  the  note,  he  had  com- 
menced suit  upon  it.  Such  a  suit  would  have  been  an  assertion  that 
he  wanted  the  money  and  would  have  fulfilled  the  condition  of  for- 
bearance. The  debtor  and  the  defendant,  when  they  became  parties 
to  the  note,  may  have  had  the  hope  or  expectation  that  forbearance 
would  follow,  and  there  was  forbearance  in  fact.  But  there  was  no 
agreement  to  forbear  for  a  fixed  time  or  for  a  reasonable  time,  but 
an  agreement  to  forbear  for  such  time  as  the  plaintiff  should  elect. 
The  consideration  is  to  be  tested  by  the  agreement,  and  not  by  what 

1  Crears  v.  Hunter,  19  Q.  B.  D.  341  ;  Edgerton  v.  Weaver,  105  111.  43 ;  Newton  v. 
Carson,  80  Ky.  309  ;  Home  Ins.  Co.  v.  Watson,  59  N.  Y.  390,  ace;  Mecorney  v.  Stan- 
ley, 8  Cush.  85;  Manter  v.  Churchill,  127  Mass.  31  ;  Shupe  v.  Galbraith,  32  Pa.  10, 
contra.     See  also  Shadburne  v.  Daly,  76  Cal.  355  ;  Lambert  v.  Clewley,  80  Me.  480. 

'  Moore  v.  McKenney,  83  Me.  80;  Haskell  v.  Tukesbury,  92  Me.  551  ;  Howe  v. 
Taggart,  133  Mass.  284  ;  Glasscock  t;.  Glasscock,  66  Mo.  627  ;  Hockenbury  v.  Meyer, 
34  N.  J.  L.  346  ;  Elting  v.  Vanderlyn  4  Johns.  237  ;  Traders'  Nat.  Bank  v.  Parker,  130 
N.  Y.  415  ;  Citizens'  Bank  i'.  Babbitt,  71  Vt.  182,  ace.      ~ 


SECT,   II.]  LYNN   V.   BRUCE.  301 

was  done  under  it.  It  was  a  case  of  mutual  promises,  and  so  in- 
tended. We  think  the  evidence  failed  to  disclose  any  consideration 
for  the  defendant's  indorsement,  and  that  the  trial  court  erred  in 
refusing  so  to  rule. 

The  order  of  the  general  Term  reversing  the  judgment  should  be 
affirmed,  and  judgment  absolute  directed  for  the  defendant  on  the 
stipulation,  with  costs  in  all  courts. 

All  concur,  except  Gray  and  Bartlett,  JJ.,  not  voting,  and 
Haight,  J.,  not  sitting. 

Ordered  accordingly. 


ai 


)l»^- 


LYNN   Am)   ANOTHER  V.   BRUCE. 
In  the  Common  Pleas,  July  1,  1794. 

[Reported  in  2  Henry  Blackstone,  317.] 


This  was  an  action  of  assumpsit.  The  first  count  of  the  declaration 
was  on  a  forbearance  to  sue  on  a  bond  given  by  the  defendant  to  the 
plaintiffs  for  200?.  The  second  was  as  follows ;  "And  whereas  also, 
afterwards,  &c.,  in  consideration  that  the  said  Robert  and  Thomas 
(the  plaintiffs) ,  at  the  special  instance  and  request  of  the  said  Charles 
(the  defendant) ,  had  then  and  there  consented  and  agreed  to  accept 
and  receive  of  and  from  the  said  Charles  a  certain  composition  of 
fourteen  shillings  in  the  pound,  and  so  in  proportion  for  a  lesser  sum 
than  a  pound,  upon  a  certain  other  sum  of  one  hundred  and  five 
pounds  five  shillings  and  twopence,  then  due  and  owing  from  tlie 
said  Charles  to  the  said  Robert  and  Thomas  upon  and  by  virtue  of  a 
certain  other  writing  obligatory,  bearing  date,  &c.,  made  and  executed 
by  the  said  Charles  to  the  said  Robert  and  Thomas,  whereby  he 
became  held  and  firmly  bound  to  them  in  the  sum  of  two  hundred 
pounds,  in  full  satisfaction  and  discharge  of  the  said  last-mentioned 
writing  obligatory,  and  all  monej's  due  thereon,  he  the  said  Charles 
undertook  and  then  and  there  faithfully  promised  the  said  Robert  and 
Thomas  to  pa}'  them  the  said  composition  of  fourteen  shillings  in  the 
pound,  and  so  in  proportion  for  a  lesser  sum  than  a  pound,  upon  the 
said  last-mentioned  sum  of  one  hundred  and  five  pounds  five  shillings 
and  twopence,  upon  request ;  and  the  said  Robert  and  Thomas  in  fact 
say  that  the  said  composition  of  fourteen  shillings  in  the  pound,  and 
so  in  proportion  for  a  lesser  sum  than  a  pound,  upon  the  said  last-men- 
tioned sum  of  one  hundred  and  five  pounds  five  shillings  and  two- 
pence, amounted  to  a  large  sum  of  mone}',  to  wit,  the  sum  of  seventy- 
three  pounds  thirteen  shillings  and  sixpence,  to  wit,  at  AVestminster 
aforesaid,  whereof  the  said  Charles  afterwards,  to  wit,  on  the  same 
day  and  year  last  aforesaid,  at  Westminster  aforesaid,  had  notice  ;  and 
although  the  said  Charles  hath  paid  to  the  said  Robert  and  Thomas 
a  certain  sum  of  money,  to  wit,  the  sum  of  seventy  pounds  and  six 


302  LYNN   V.   BllUCE.  [CHAP.   L 

shillings,  part  of  the  said  last-mentioned  sum  of  seveny-three  pounds 
thirteen  shillings  and  sixpence,  the  amount  of  the  said  last-mentioned 
composition,  3'et  the  said  Charles  not  regarding,  &c.,  hath  not  yet 
paid  the  sum  of  three  pounds  seven  shilliugs  and  sixpence,  being  the 
residue  of  the  said  sum  of  seventy-three  pounds  thirteen  shillings  and 
aixijence,  the  composition  last  aforesaid,  or  anj'  part  thereof,"  &c. 

A  verdict  having  been  found  for  the  plaintiffs  on  the  whole  declara- 
tion, a  motion  was  made  in  arrest  of  judgment  on  the  ground  of  the 
ins^ilficiency  of  the  second  count ;  and  after  argument  the  opinion  of 
the  Court  was  thus  delivered  hj 

Lord  C.  J.  Eyke.  This  is  a  motion  made  in  arrest  of  judgment,  on 
an  objection  to  the  second  count  of  the  declaration.  The  substance 
of  that  count  is  that,  in  consideration  that  the  plaintiff  at  the  defend- 
ant's request  had  consented  and  agreed  to  accept  and  receive  from 
the  defendant  a  composition  of  fourteen  shillings  in  the  pound,  and  so 
in  proportion  for  a  lesser  sum  than  a  pound,  upon  105/.  5s.  2d.  due 
from  the  defendant  to  the  plaintiff  on  a  bond  dated  the  30th  March, 
1792,  for  200/.,  in  full  satisfaction  and  discharge  of  the  bond  and  all 
money  due  thereon,  the  defendant  promised  to  pay  the  said  composi- 
tion. It  is  then  averred  that  the  composition  amounted  to  73/.  13s. 
6f/. ,  and  that  the  defendant  had  paid  the  plaintiff  70/.  6s. ,  part  thereof. 
The  breach  is,  that  he  did  not  pay  3/.  7s.  6^.,  the  residue.  This  will 
be  found  to  be  a  ver}'  clear  case,  when  the  nature  of  the  objection  is 
understood.  The  consideration  of  the  promise  is,  as  stated  in  this 
count,  an  agi'cement  to  accept  a  composition  in  satisfaction  of  a  debt. 
If  this  is  an  agreement  which  is  binding,  and  can  be  enforced,  it  is  a 
good  consideration ;  if  it  is  not  binding,  and  cannot  be  enforced,  it  is 
not  a  good  consideration.  It  was  settled  in  the  case  of  Allen  v.  Har- 
ris, 1  Lord  Raym.  122,  upon  consideration  of  all  the  cases,  that  upon 
an  accord,  which  this  is,  no  remed}'  lies ;  it  was  said  that  the  books 
are  so  numerous  that  an  accord  ought  to  be  executed,  that  it  was 
impossible  to  overturn  all  the  authorities :  the  expression  is,  ' '  over- 
throw all  the  books."  It  was  added  that,  if  it  had  been  a  new  point, 
it  might  have  been  worth}'  of  consideration.  But  we  think  it  was 
rightly  settled  upon  soiuid  principles.  Interest  reipuhlicce  ut  sit  Jim's 
Utium :  accord  executed  is  satisfaction  :  accord  executory  is  only  sub- 
stituting one  cause  of  action  in  the  room  of  another,  which  might 
go  on  to  any  extent.  The  cases  in  which  the  question  has  been  raised, 
whether  an  accord  executor}'  could  be  enforced,  and  in  which  it  has 
been  so  often  determined  that  it  could  not,  have  been  cases  in  which 
it  has  been  pleaded  in  bar  of  the  original  action.  But  the  reason 
given  in  three  of  the  cases  in  1  Rol.  Abr.,  tit.  Accord,  pi.  11,  12,  13, 
is  because  the  plaintiff  hath  not  an}'  remedy  for  the  whole,  or  where 
part  has  been  performed,  for  that  which  is  not  perfonned,  which  goes 
directly  to  the  gist  of  this  action,  as  it  is  stated  in  the  count  objected 
to.  This  is  an  action  brought  to  recover  damages  for  that  part  of  the 
accord  which  has  not  been  performed.     But  an   accord  must  be  so 


SECT,    n.]  CROWTHER   V.   FARRER.  303 

completely  executed  in  all  its  parts  before  it  can  produce  legal  obliga- 
tion or  legal  efifect,  that  in  Peytoe's  Case,  9  Co.  79  b,  it  was  holden 
that,  where  part  of  the  accord  had  been  executed,  tender  of  the 
residue  would  not  be  sufficient  to  make  it  a  bar  to  the  action,  but  that 
there  must  be  an  acceptance  in  satisfaction.  There  are  two  cases  in 
Cro.  Eliz.  304,  305,  to  the  same  effect.  It  was  argued  according  tc 
the  cases  in  Rol.  Abr.  that  an  accord  executory  in  an}-  part  is  no  bar, 
because  no  remedy  lies  for  it  for  the  plaintiff.  Perhaps  it  would  be  a 
better  way  of  putting  the  argument,  to  say  that  no  remedy  lies  for  it 
for  the  plaintiff,  because  it  is  no  bar ;  but  put  either  way,  it  concludes 
in  support  of  the  objection  to  the  second  count  in  this  declaration, 
and  consequently  the  judgment  must  be  arrested. 

Hide  absolute  to  arrest  the  Judgment. 


'J 


CROWTHER  AND  Others  v.  FARRER. 
In  the  Queen's  Bench,  June  10,  1850. 

\Re}i"Tttd  in  15  Queen's  Bench  Reports,  677. | 


Assumpsit.  The  declaration  stated  that  at  the  time  of  the  making 
of  the  promise  two  actions,  one  in  trover  and  the  other  in  trespass, 
both  at  the  suit  of  the  present  plaintiffs  against  the  present  defendant, 
were  pending  in  the  Queen's  Bench  ;  and  thereupon  it  was  agi-eed  by 
and  between  the  plaintiffs  and  the  defendant  in  manner  following, 
that  is  to  say :  that  the  said  actions  should  be  settled,  and  all  proceed- 
ings therein'stayed,  and  that  the  defendant  should  pay  to  the  plaintiffs 
40Z.  in  respect  of  the  costs  of  the  said  two  actions,  and  also  236/.  9s. 
in  part  of  damages  ;  and  that  the  plaintiffs  should  receive  from  certain 
other  persons,  to  wit,  J.  B.  and  J.  P..  263L  lis.  ;  but  in  the  event  of  J. 
B.  and  J .  P.  neglecting  or  refusing  to  pay  to  the  plaintiffs  that  amount, 
or  in  the  event"  of  J.  B.  and  J.  P.  giving  up  their  contract  with  the 
defendant,^  then,  and  in  either  of  such  cases,  the  defendant  should  pay 
to  the  plaintiffs  what  might  remain  unpaid  to  them  of  such  sum  of 
263/.  lis.,  in  which  case  the  defendant  should  be  entitled  to  get  the 
1,506  square  yards  of  stone ^  in  the  said  agi-eement  mentioned,  or  to 
sell  it  as  he  might  think  proper,  in  the  same  manner  as  though  a  cer- 
tain agreement  of  1835  had  never  been  made.^  Averment  of  mutual 
promises  :  "  and,  although  the  plaintiffs  have  always  perfonned  the  said 
agreement  on  their  part,  and  although  they,  confiding  in  the  said  prom- 
ise of  the  defendant,  did  then,  to  wit,  upon  the  making  of  the  said 
promise,  wholly  cease  to  prosecute  the  said  actions  and  each  of  them, 
and  have  thence  continually  hitherto  stayed  all  proceedings  therein, 

1  The  declaration  did  not  state  anything  further  on  this  subject. 


304  CROWTHEE    V.    FAlllii^::.  [CHAP.    I. 

and  ulthough  a  reasonable  time  for  the  defendant  to  pay  the  said  sums 
of  40/.  and  236/.  9s.  had  ehxpsed  long  before  the  eonimeneement  of  this 
suit."  Breach :  non-pa}^uent  of  these  sums,  or  either  of  them,  or  any 
part  thereof. 

Plea  :   Non  assnmpsif.     Issue  thereon. 

On  the  trial  before  Patteson,  J.,  at  the  York  Summer  Assizes,  1849, 
it  appeared  that  a  contract  to  the  effect  set  out  in  the  count  was  made 
between  the  plaintiffs  and  the  attorneys  of  the  defendant.  The  main 
contest  was,  whether  or  not  there  was  sufficient  evidence  of  authority 
on  their  part  to  bind  the  defendant.  The  learned  judge  reser\'ed  leave 
to  move  to  enter  a  nonsuit  if  there  was  no  such  e\'idence,  and  left  the 
case  to  the  jurj'.     Verdict  for  plaintiff's. 

Knoicles,  in  Michaelmas  Term  last,  obtained  a  rule  nisi  to  enter  a 
nonsuit,  pursuant  to  the  leave  reserved,  or  to  arrest  the  judgment.  On 
this  day  cause  was  shown. 

It  appeared,  by  the  judge's  notes,  that  there  was  evidence  of  an 
express  ratification  of  the  contract  hy  the  defendant ;  and  the  rule  to 
enter  a  nonsuit  was  discharged  on  that  ground.  The  argument  relating 
to  that  portion  of  the  rule  is  omitted. 

Martin  and  Hugh  Hill,  as  to  the  rule  for  arresting  judgment.  The 
rule  has  been  ol)tained  on  the  supposition  that  this  is  an  action  on  a 
mere  accord.  But  it  is  an  action  on  an  agreement  in  consideration  of 
forbearance  of  suit,  which  is  more  than  a  mere  accord  unexecuted. 
The  reason  why  an  action  shall  not  lie  on  a  mere  executor)'  accord  (or, 
as  it  is  there  called,  concord) ,  is  fully  explained  in  Reniger  v.  Fogossa.^ 
The  mere  executory  concord  which  does  not  prevent  the  plaintiff"  from 
proceeding  with  his  action  is  without  consideration.  But,  when  there 
is  consideration  for  the  agreement,  an  action  will  lie,  though  the  agree- 
ment is  an  accord.  In  Com.  Dig.,  Action  on  the  Case  upon  Assumpsit 
(B.  1),  it  is  said  :  "A  promise  in  consideration  of  the  forbearance  of  a 
suit  is  good  ;  for  that  is  for  the  benefit  of  the  defendant,  though  the 
action  is  not  discharged."  In  the  present  case  there  is  much  more  cod- 
sideration  than  in  that  put  by  Com3'ns ;  for  the  actions  are  by  the 
agreement  actually  settled,  so  that  the  plaintiffs  could  not  afterwards 
have  proceeded  with  them.  Cartwright  v.  Cooke,^  Wilkinson  v.  Byers. 
It  is  sufficient,  however,  that  there  should  be  any  consideration.  Hen- 
derson V.  Stobart  is  much  in  point. 

Knowles  and  Tomlinson,  contra.  [Lord  Campbell,  C.  J.  If  the 
plaintiffs,  at  the  request  of  the  defendant,  made  a  contract  which  they 
would  break  if  they  proceeded  with  the  actions,  is  not  that  alone  a 
consideration  to  support  the  defendant's  promise?]  Such  is  not  the 
meaning  of  the  agreement ;  the  plaintiffs  do  not  agree  to  stay  the 
actions  unless  they  are  paid  the  mone}^ :  it  is  a  mere  accord.  And,  if 
the  construction  of  the  agreement  was  that  the  actions  should  be  stayed 
by  a  binding  release  on  the  plaintiffs'  pait,  there  is  no  aveniuuit  of  per- 
foni\an<'e. 

i  1  Plowden,  1,  5,  6.  2  3  b.  &  Ad.  701. 


SECT,   n.j  CROWTHEK   V.   rAr.RER.  305 

Lord  Campbell,  C.  J.  The  motion  in  arrest  of  judgment  is  made 
on  two  grounds  :  first,  tliat  the  declaration  discloses  no  consideration 
for  the  defendant's  promise  ;  secondly,  that  there  are  not  proper  aver- 
ments of  performance  of  conditions  precedent.  Now,  as  to  the  first 
objection,  the  count  states  that  it  was  agi*eed  between  the  plaintiffs  and 
defendant  that  the  two  actions  should  be  settled,  and  all  proceedings 
therein  stayed.  The  question  is  not  what  would  fonn  a  good  plea  in 
bar  to  the  further  maintenance  of  these  actions,  but  whether  tliis  is  a 
good  consideration  for  the  defendant's  agreement.  Is  it  not  an  advan- 
tage to  the  promisor,  and  a  disadvantage  to  the  promisee,  that  two 
actions  against  the  one  at  the  suit  of  the  other  should  be  settled,  and 
no  proceedings  taken  therein  ?  Then  there  is  a  general  averment  of 
performance,  which  after  verdict  is  abundantly  sufficient,  though  it 
might  be  bad  on  special  demurrer ;  but  the  count  goes  farther,  and 
aUeges  performance  more  particularU*.  I  think,  however,  that  the 
agreement  does  not  contemplate  that  any  further  act  should  be  done 
to  settle  these  actions.  It  appears  that,  by  those  who  framed  the 
agreement,  the}'  were  considered  as  settled  by  tlie  agreement  itself; 
and,  I  think,  rightly ;  for  they  were  so  settled.  1  cannot  entertain  any 
doubt  that,  if,  after  such  an  agreement,  an  attempt  were  made  to  pro- 
ceed in  the  actions,  the  coiirt  would  interfere  sumraaril}'  if  the  defend- 
ant was  not  in  default. 

Patteson,  J.  The  question  is  raised,  whether  on  the  face  of  this 
declaration  there  is  any  thing  more  than  an  accord.  Now  1  own  I 
think  the  meaning  of  what  is  stated  in  the  declaration  is  that  the 
actions  are  actually  gone  by  the  agreement,  and  that  the  plaintiff  could 
not  have  gone  on  with  tliem  ;  but,  even  if  it  was  no  more  than  an 
agi'eement  on  the  part  of  the  plaintiffs  to  refrain  from  going  on,  I  think 
that  was  a  sufficient  consideration  to  support  the  promise  of  tha 
defendant. 

v^oLKKUxiE,  .J.  It  seems  to  me  that  the  declaration  discloses  a 
mutual  agreement,  binding  each  party  to  the  other,  supposing  that 
other  to  have  performed  his  own  part.  I  had  more  doubt  as  to  the 
suJlicienc}'  of  the  averment  of  performance.  Perhaps  on  a  special 
demurrer  it  might  not  be  sufficient :  but  this  is  after  verdict ;  and  then 
it  is  enough  that  there  is  an  avennent  of  the  plaintiffs  haWng  alwaj-s 
performed  the  agreement  on  their  part. 

Erle,  J.  I  shall  only  add  one  word  as  to  the  averment  of  perform- 
ance. I  take  it  that,  when  the  plaintiffs  and  the  defendant  agree  tiiat 
the  actions  are  settled,  the  verj'  agreement  puts  an  end  to  the  actions  ; 
that  the  court  would  interfere  if  they  were  afterwards  proceeded  with  ; 
and  that  consequentlj-  no  further  perfonnance  of  the  agreement  is 
required.  Jiuk  discharged. 


VOL.  1.  —  20 


306  NASH   V.    AKMSTHONQ.  [CHAP.    I. 


NASI  I.  A(lui!uistr<dor  ivitli  the   IVi'l  (ui/iexed  of  tiouN   BiiAXsuN,  deceased, 
V.  ARMSTRONG* 

In  the  Common  Pleas,  Mat  11,   1861. 

IReported  in  10  Common  Bench  Reports,  New  Series,  269.] 

The  declaration  stated  that,  b}-  deed  dated  the  29th  of  Febniary, 
1860,  the  said  John  Beatson,  being  then  possessed  thereof  for  a  term 
which  had  not  yet  ex]jired,  let  to  the  defendant  certain  rooms,  part  of  a 
house  of  the  said  John  Beatson,  therein  described,  from  the  1st  of 
March  in  that  year  to  the  24th  of  June  in  that  year,  at  rent  to  be 
ascertained  by  two  valuers,  one  on  the  part  of  the  said  John  Beatson, 
and  one  on  the  part  of  the  defendant,  or  an  mnpire  to  be  agreed  on  by 
the  said  two  valuers,  such  rent  to  include  the  use  of  the  lixtuj-es  and 
fittings  then  in  and  upon  the  said  demised  premises,  and  which  then 
belonged  to  the  said  John  Beatson,  the  expense  of  the  valuer  to  be 
employed  by  the  said  John  Beatson  to  be  paid  in  the  first  instance  by 
the  defendant,  and  retained  b}"  him  out  of  the  rent  for  the  said  demised 
premises  accruing  due  from  him  on  the  said  24th  of  June,  1860  ;  and 
afterwards  the  said  valuers  were  respectively  accordingly  duly  ap- 
pointed, but  did  not,  without  any  default  of  the  said  John  Beatson  or 
the  plaintiff  in  that  behalf,  ascertain  the  rent  so  to  be  paid  as  aforesaid, 
or  appoint  any  umpire  ;  and  the  defendant  nevertheless,  at  his  request, 
occupied  the  said  rooms  under  the  said  demise  until  the  said  24th  of 
June,  and  afterwards  as  tenant  thereof  to  the  plaintiff  as  administrator 
as  aforesaid,  for  a  long  time,  to  wit,  until  the  1st  of  September,  1S60, 
the  said  John  Beatson  having  previously  died  ;  that  afterwards,  and 
whilst  the  amount  of  rent  to  be  paid  by  the  defendant  for  and  in 
respect  of  his  said  occupation  of  the  said  rooms  to  the  said  24th  of 
June,  and  thence  to  the  said  1st  of  September,  was  and  remained 
unascertained  and  not  agreed  upon,  and  unpaid,  it  was,  at  the  defend- 
ant's request,  mutually  agreed  between  the  plaintiff  as  administrator 
as  aforesaid  and  the  defendant,  that,  if  the  plaintiff  as  administrator 
as  aforesaid  would  not  insist  upon  such  valuation  as  aforesaid,  and 
would  not  require  that  the  said  valuei'S  should  be  called  upon  to 
appoint  an  umpire  to  ascertain  the  amount  of  the  said  rent  to  be  paid 
for  the  defendant's  said  occupation  until  the  said  24th  of  June,  and 
the  said  valuers  should  be  instructed  not  to  appoint  such  umpire  as 
aforesaid,  the  defendant  would  pay  to  the  plaintiff  as  administrator  as 
aforesaid,  for  and  in  respect  of  his  occupation  of  the  said  rooms  under 
the  said  deed,  and  for  and  in  respect  of  the  said  subsequent  occupation 
thereof  as  tenant  to  the  plaintiff  as  administrator  as  aforesaid,  a  reason- 
able sum  in  that  behalf,  to  wit,  the  sum  of  70L  ;  and  that  neither  the 
plaintiir  as  administrator  as  aforesaid,  nor  the  defendant,  should  ever 


SECT.   II.]  NASH   V.   ARMSTRONG.  307 

call  upon  the  other  of  them  to  carry  out  or  perform  or  fulfil  the  'Uirms 
of  the  said  deed.  Avennent :  that  the  plaintitf  did  every  thing,  and 
every  thing  existed  and  had  before  suit  happened  to  entitle  the  plain- 
tiff, as  administrator  as  aforesaid,  to  pa^^nent  of  the  said  sum  of  money 
last  mentioned,  to  wit,  101.  Breach :  that  no  part  thereof  had  been 
paid. 

To  this  count  the  defendant  demurred,  the  gi'ound  of  demurrer 
stated  in  the  margin  being,  "  that  a  contract  under  seal  cannot  be 
varied  or  discharged  by  a  parol  agreement."     Joinder. 

a.  G.  Williams^  in  support  of  the  demurrer.^  There  is  no  valid 
consideration  for  the  promise  stated  in  the  declaration.  [Williams,  J. 
Wliy  is  it  not  a  good  consideration  in  assumpsit  that  the  plaintiff  fore- 
goes his  rights  under  the  deed  ?]  It  is  varying  by  parol  tlie  terms  of 
a  deed.  [Williams,  J.  That  is  not  so.]  By  the  parol  agreement,  the 
defendant  is  to  pay  ihe  rent  ascertained  in  a  way  different  from  that 
provided  by  the  deed.  [Williams,  J.  The  plaintiff  is  seeking  to 
enforce  an  agreement  founded  upon  a  consideration  that  the  plain- 
tiff will  not  put  in  force  his  rights  under  the  deed.]  A  deed  can 
only  be  varied  by  deed.  Would  a  recovery  in  this  action  be  plead- 
able in  bar  to  an  action  upon  the  deed?  [Willes,  J.  I  should 
have  thought  it  a  good  answer  by  way  of  equitable  plea.  The  pay- 
ment of  the  70Z.  under  the  agreement  would  surely  be  ground  for 
an  unconditional  perpetual  injunction  against  proceeding  upon  the 
deed.]  The  declaration,  it  is  submitted,  must  be  treated  as  it  would 
have  been  before  equitable  pleas  were  known.  Most  of  the  cases  upon 
this  subject  are  cases  where  the  parol  agreement  is  set  up  as  an  answer 
to  an  action  on  the  deed ;  but  the  grounds  of  the  decision  in  "White  v. 
Parkin,  12  East,  578,  are  strongly  in  favor  of  the  proposition  contended 
for  here.'  ...  In  the  present  case,  it  cannot  be  contended  that  the 
parol  agreement  does  not  conflict  with  the  deed.  There  is  an  utter 
repugnance  between  the  two  instruments.  In  the  course  of  the  argu- 
ment in  White  v.  Parkin,  a  case  of  Leslie  v.  De  la  Torre  was  cited, 
where  Lord  Kenyon  ruled  that,  the  agreement  by  charter-party  being 
under  seal,  the  plaintiff  could  not  set  up  a  parol  agreement  inconsist- 
ent with  it,  and  which  in  effect  was  meant  in  a  certain  extent  to  alter 

^  The  points  marked  for  argument  on  the  part  of  the  defendant  were  as  follows  :  — 

"  1.  That  the  plaintiff  by  the  first  count  is  seeking  to  recover  upon  a  deed  as 
varied  by  a  parol  agreement,  whereas  a  deed  can  only  be  varied  by  a  deed  ; 

"  2.  That  the  alleged  agreement  could  be  carried  out  by  deed  only,  and  there  is  no 
allegation  of  the  execution  of  any  such  deed ; 

*'  3.  That  the  matters  alleged  in  the  first  count  disclose  a  claim  which  can  be  en- 
forced only  in  equity,  and  not  at  law  ; 

"  4.  That  there  is  no  consideration  for  the  alleged  agreement,  if  it  is  to  be  consid- 
ered as  independent  of  the  deed  ; 

"  5.  That  the  alleged  agreement  would  afford  no  answer  to  an  action  upon  the  deed, 
or  prevent  the  plaintiff  from  calling  upon  the  valuers  to  appoint  an  umpire,  or  upon 
the  defendant  to  carry  out  the  terms  of  the  deed,  and  the  consideration  for  it  is  wholly 
nugatory  ; 

"  6.  That  the  alleged  agreement  is  in  the  nature  of  an  accord  only,  and  cannot  be 
enforced  or  sued  upon." 

2  The  learned  counsel  here  stated  that  case. 


'606  ]S!ASH   V.    AKMSTllU^G.  [CHAP.   I. 

it.  [Williams,  J.  The  dilBculty  in  your  way  is,  that  there  is  here  an 
undertaking  on  the  plaintiffs  part  to  forbear  from  enforcing  the  pay- 
ment of  rent  under  the  deed.]  A  rent  would  be  payable  under  tlie 
(ieed,  to  which  this  agreement  would  be  no  answer.  White  v.  Parkin  ^ 
was  cited  and  approved  of  in  Thompson  v.  Brown,  7  Taunt.  6^)6,  672.^ 
....  A  deed  cannot  be  varied  in  any  way  ly  parol ;  and  no  action  can 
be  maintained  on  a  parol  agreement  wliich  varies  the  deed.  In  the 
case  of  a  contract  for  the  sale  of  goods  witliiu  the  17th  section  of 
the  Statute  of  Frauds,  where  another  day  for  payment  has  been  by 
parol  substituted  for  that  originally  fixed  by  the  contract,  it  has  been 
held  that  the  subseciueiit  parol  agreement  cannot  be  made  tlie  founda- 
tion of  an  action.  Marshall  v.  Lynn,  <>  M.  &  W.  109  ;  Mechelen  v.  Wal- 
lace, 7  Ad.  &  E.  49.  2  N.  &  P.  224  ;  Stead  v.  Dawber,  10  Ad.  &  E.  57. 
In  Chitty  on  Contracts,  6th  edit.  5o,  it  is  said  :  ''  lfJ4i£i:g_be_an_entire 
considemtionJJur_  the  defendant's  in'omise,  made  u])  of  several  particu; 
Tars,  and  one  of  tliese  coifsist  of -an  atireeinent  by  the  defendant  which 
the~Statute  of  Frauds  recpiires  to  be  in  writing,  and  which  for  want  of" 
such  writing  is  void,  the  wliole^  consideration  is  vojd^_^nd^  the__£romise" 
cannot  be  supiJortcMl?^  Here,  thcTre  wouUl  be  nothing  to  prevent  tEe^ 
plaintitT  from  bringing  an  action  upon  the  deed,  even  after  the  money 
was  paid  under  the  agreement.  To  allow  this  declaration  to  be  good 
would  be  promoting  circuit}-  of  action. 

Raymond,  for  the  plaintiff,  was  not  called  upon.* 

Williams,  J.  I  am  of  opinion  that  there  should  be  judgment  for 
the  plaintiff  on  this  demurrer.  I  do  not  think  it  necessary  to  dispute 
the  correctness  of  many  of  the  doctrines  contended  for  in  the  argu- 
ment ;  for  I  do  not  consider  that  the  conclusion  we  have  arrived  at  in 
any  degree  conflicts  with  any  of  the  rules  of  law  adverted  to.  On  the 
face  of  this  declaration  there  is  an  admitted  promise  by  the  defendant 
to  pay  a  certain  sum  of  money  at  a  stipulated  time,  and  an  admitted 
breach  of  that  promise.  That  is  a  perfectly  good  promise  if  founded 
upon  a  sufficient  legal  consideration ;  and  the  simple  question  is, 
whether  there  is  a  sutHcient  legal  consideration  disclosed  on  the  decla 
ration.  I  am  of  opinion  that  there  is.  It  appears  upon  the  face  of  tae 
declaration  that  the  plaintiff,  as  the  personal  representative  of  the  orig- 
inal contracting  party,  being  in  a  condition  to  bring  an  action  upon  the 

1  Leslie  v.  De  la  Torre  ? 

2  The  learned  counsel  here  stated  the  case  of  Gwynne  v.  Davy,  1  M.  &  G.  857, 
1  Scott,  N.  R.  29,  9  Dowl.  P.  C.  1. 

3  The  points  marked  for  argument  on  the  part  of  the  plaintiff  were  as  follows :  — 
"  1.   That  the  contract  disclosed  by  the  first  count  does  not  infringe  upon  the  rule 

that  a  contract  under  seal  cannot  be  varied  by  parol  agreement ; 

"  2.  That,  although  a  contract  under  seal  cannot  be  varied  by  parol,  yet  it  is  com- 
petent to  the  parties  to  enter  into  a  fresh  agreement  by  parol,  and  for  a  good  consid- 
eration, not  to  put  in  force  the  original  contract ; 

"  3.  That  the  contract  declared  on  is  collateral  to  that  entered  into  by  the  deed, 
and  leaves  the  force  of.  the  deed  itself  intact,  and  amounts  merely  to  an  agreement 
not  to  enforce  the  performance  of  the  original  contract  under  seal ; 

"  4.  That  such  new  contract  is  founded  upon  a  good  consideration,  and  is  there- 
fore valid." 


SECT.    II.] 


NASH   V.    ARMSTRONG. 


309 


original  contract,  or  otherwise  to  put  it  in  force,  in  consideration  of  his 
abstaining  from  enforcing  the  rights  conferred  on  him  by  that  contract, 
/he  defendant  promised  to  pay  in  respect  of  the  occupation  of  the 
premises  under  the  deed  referred  to,  and  in  respect  of  his  subsequent 
occupation  thereof  as  tenant  to  the  plaintiff  as  administrator,  a  reason- 
able sum.  It  was  not  necessary,  in  order  to  make  that  a  good  cojisid^ 
eration,  that  the  mutual  promises  shouIdamouilLJto  a^  release  of  the 
nglit  or  action  flowing  from  the  original  contract.  Thephjintitf,  hav-^ 
ing  a  right  to  enforce  the  benefits  conferred  on  him^bj  thC-jCoiitracL 


^nters  into  an  agieement  not  to  do  sOi_wherebyJi£_j^hajiges  his  situa^    ^^  ciJ^^ 
tion  to  tins  extent,  that,  wherejis^  before  he-4ta4-aH(4ght-tQ.  sue  upon  the.  ^ 
deed,  ifjjc  now  exej;cises_tbat^ri<;lit   hp  renders.  hiDiself_Uable^  to  an  ^- 
actiori^— ^He  has  therefore  plainly  given  a  good  consideration  for  the 
defendant's  promise,  and  there  is  a  complete  cause  of  action  disclosed 
on  the  face  of  the  declaration.     Upon  principle,  this  is  in  truth  nothing 
more  than  the  ordiuar\"  case  to  be  found  in  the  old  books,  of  an  action 
against  an  heir  whose  ancestor  has  made  a  bond  binding  himself  and 
his  heirs,  and  who  lias  assets   by  descent;   if  he  contracts  with  the' 
obligee  of  the  bond  that,  if  the  latter  will  forbear  to  put  the  bond  in  p-p 
suit,  he  will  pay  the  sura  secured   b}'  a  given  da}-,  —  that  is  a  good 
assumpsit,  and  the  forbearance  till  the  day  named  is  a  good  considera- 
tion to  support  the  promise.     The  bond  is  not  released  by  that.     The  "^^  ^    1;^ 
only  result  is,  to  subject  the  obligee  to  an  action  if  he  puts  the  bond  in  -^_J—  "^ 
suit  before  the  expiration  of  the  time  agreed  on.     To  that  extent  the  ^    ^    - 
terms  of  the  bond  are  varied,  and  3-et  the  bond  remains  unreleased  ;    7 
nevertheless,  the  consideration  which  flows  from  the  agreement  of  the     < 
obligee  not  to  put  the  bond  in  suit  is  good,  and  furnishes  a  ground  of 
action  if  i^  be  broken.     That  principle  is  applicable  here, 

WiLLES,  J.  J  am  entirely  of  the  same  opinion.  It  appears  to  me 
that  this  declaration  is  neither  open  to  the  objection  that  it  is  an 
attempt  to  vary  by  parol  the  terms  of  a  deed,  nor  to  the  objection  that 
it  is  an  action  upon  an  accord. 

Byles,  J.  I  had  at  first  some  doubt  whether  the  maxim  unumguodz^ 
que  dissolvitur  eodem  Ugamine  quo  ligatur  was  not  applicable  here ; 
for,  till  satisfaction,  tlie  pUiintitl'  might  always  have  an  action  upon  the 
deed,  and  one  cannot  liut  see  that  this  would  lead  to  circuity  of  action. 
P\irther,  whatever  may  be  the  value  of  the  decision  in  Leslie  v.  Da  .a 
Torre,  the  reported  observations  of  Lord  Ken^'on  are  very  much  in 
favor  of  Mr.  Williams's  argument.  But  Gw\'nne  v.  Davy  is  not  sa 
Ihree  of  the  judges  there  intimate  an  opinion  that  an  action  might  be 
maintained  on  the  parol  agreement.  And  no  other  authorities  have 
been  cited  to  show  that  the  rule  is  applicable  to  a  cross-action,  and  is 
not  confined  to  an  action  on  the  deed. 

Keating,  J.  1  concur  with  the  rest  of  the  Court  in  thmking  that 
tlie  declaration  discloses  a  promise  founded  on  a  good  consideration, 
and  that  it  is  not  open  to  the  objection  that  the  plaintifl"  is  seeking  by 
parol  to  vary  the  terms  of  an  instrument  under  seal. 

Judgm.ent  for  the  plaintiff . 


310  SCHWEIDER   V.    LANG.  [CHAP.    I. 

JOHN   SCHWEIDP:R  v.   GEORGE   LANG. 

Minnesota  Supreme  Court,  July  3,   1882. 
[Reported  in  29  Minnesota,  254.] 

Berry,  J.  On  September  27,  1881,  defendant,  as  payee,  holding 
plaintiff's  promissory  note,  upon  which  there  was  an  unpaid  balance 
of  $1,850,  falling  due  November  10,  1882,  with  interest  to  accrue, 
they  agreed  as  follows:  Defendant  agreed  to  accept  $1,750  in  full 
satisfaction  of  the  balance  of  principal  and  interest  called  for  by 
the  note;  $150  to  be  paid  by  plaintiff  within  one  week,  and  $1,600 
within  two  weeks  from  said  September  27 ;  the  note  to  be  there- 
upon delivered  up,  and  a  mortgage  securing  the  same  to  be  cancelled. 
Plaintiff  agreed  to  raise  the  $1,750  and  pay  the  same  to  defendant 
as  above  specified.  It  was  subsequently  mutually  agreed  that  de- 
fendant should  call  upon  plaintiff  at  his  residence,  within  a  week 
from  September  27,  to  receive  the  $150  payment,  plaintiff  to  have 
the  same  there  in  readiness.  Plaintiff  had  and  kept  the  $150  in 
readiness  during  the  week;  but  defendant  failed  to  call  for  it  at  any 
time,  and  plaintiff  was  unable  to  find  him  during  the  week  mentioned. 
Within  two  weeks  from  September  27,  plaintiff,  after  much  expense 
and  trouble,  procured  the  sum  of  $1,600,  and  on  October  10,  1881, 
duly  tendered  the  sum  of  $1,750  to  the  defendant  in  fulfilment  of  his 
(plaintiff's)  agreement,  and  requested  defendant  to  fulfil  on  his  part. 
Defendant  refused  to  receive  the  money  or  to  perform  his  part  of  the 
agreement,  having  on  October  1,  without  plaintiff's  knowledge,  sold 
and  transferred  the  note  and  mortgage  to  a  third  party,  to  whom 
plaintiff  became  thereby  bound  to  pay  the  full  unpaid  amount  called 
for  by  the  note.  Plaintiff  brings  this  action  for  damages  for  defend- 
ant's breach  of  contract. 

The  agreement  between  the  parties  was  not  for  the  sale  of  the  note 
and  mortgage,  but  one  by  which  the  maker  of  these  instruments  was 
to  be  discharged  from  liability  thereon  by  the  payee.  The  agree- 
ment is,  therefore,  not  within  the  statute  of  frauds,  so  as  to  be  re- 
quired to  be  in  writing.  The  agreement  is  what  is  known  as  an 
accord^_^gg^tory ;  that  is  to  say,  ilLJs  an  agreement  upon  the  sum 
to_J*e-p2id  and  received  at  a  future  day  in  satisfaction  of  the  note. 
If  the  accof^S^adnBeeir^ecutecTrthere  wouT^Eave""beeh  a  sattsfae- 
tion  extinguishing  the  note,  the  case  being  taken  out  of  "the  rule  by 
which  payment  of  a  part  is  held  insufllicient  to  satisfy  the  whole  of 
a  liquidated  indebtedness  by  the  fact  that  the  payment  was  to  be 
made  before  the  indebtedness  fell  due.  Sonnenberg  v.  Riedel,  16 
Minn.  83 ;  Brooks  v.  White,  2  Met.  283. 

The  case  is,  then,  one  of  a  promise  on  the  part  of  the  plaintiff  to 
do  something  of  advantage  in  law  to  the  defendant,  and  on  the  part 
of  the  defendant  to  do  something  of  advantage  in  law  to  the  plain- 
tiff—  a  case  of  mutual  promises,  one  of  which  is  the  consideration  of 
the  other.     The  agreement  was  valid  and  binding  upon  both  parties. 


SECT,    n.]  BOSDEN   V.    THINNE.  311 

The  plaintiff  has  duly  offered  to  perform  on  his  part.  The  defendant 
has  refused  to  accept  the  proffered  performance,  as  also  to  perform 
on  his  part  at  plaintiff's  request,  and  has  moreover  disabled  himself 
from  performing  by  disposing  of  the  note.  The  plaintiff  is,  there- 
fore, in  accordance  with  the  general  rule  which  gives  damages  for 
breach  of  contract,  entitled  to  recover  the  damages  which  have  re- 
sulted to  him  from  this  breach  by  defendant.  Billings  v.  Vander- 
beck,  23  Barb.  546 ;  Scott  v.  Frink,  53  Barb.  533 ;  Very  v.  Levy,  13 
How.  845. 

Order  affirmed. 


C.  —  Executed  Consideration  and  Moral  Consideration. 


RIGGS  V.   BULLINGHAM. 
In  the  Queen's  Bench,  Michaelmas  Term,  1599. 

{Reported  in  Croke  Elizabeth,  716.] 

Assumpsit.  Whereas  he  was  seised  in  fee  of  the  advowson  of  Beck- 
ingham,  in  the  county  of  Lincoln ;  in  consideration  that  he  at  the 
defendant's  request,  by  his  deed,  dedisset  et  concessisset  to  the  defendant 
the  first  and  next  avoidance  of  the  said  church,  the  defendant,  22  Au- 
gust, 37  Eliz.,  assumed  to  pa}-  to  the  plaintiff  100/.,  &c.  Upon  non 
assumpsit  pleaded,  it  was  found  for  the  plaintiff,  and  damages  assessed 
to  an  100/.  And  after  verdict  it  was  moved  in  an-est  of  judgment  that 
this  consideration  is  past,  and  therefore  not  sufficient  to  ground  an 
assumpsit ;  for  there  is  not  any  time  of  the  grant  alleged  ;  and  it  might 
have  been  divers  j-ears  before  the  assumpsit  made  ;  and  being  a  thing 
executed  and  past,  no  assumpsit  afterwards  can  be  good  :  and  in  proof 
thereof  Dyer,  272,  Hunt  y.  Bate  was  cited.  But  all  the  Court  re- 
solved to  the  contrar}' ;  for  the  grant  being  made  at  his  request,  it  is 
a  sufficient  consideration,  although  it  were  divers  j'ears  before ;  espe- 
cially being  to  the  defendant  himself,  the  consideration  shall  be  taken 
to  continue.  But  if  the  gi-ant  had  been  to  a  stranger,  and  not  at  the 
defendant's  request,  it  had  peradventure  been  otherwise.  .  .  .  Where- 
fore it  was  adjudged  for  the  plaintiff. 


y 


BOSDEN  V.  SIR  JOHN  THINNE. 
Ik  the  King's  Bench,  Michaelmas  Term,  1603. 

[Reported  in  Ydverton,  40.] 

The  plaintiff  declared,  quod  cum  ad  specialem  instantiam  of  the  defend 
ant,  he  had  procured  credit  for  one  Flud  for  two  pipes  of  wine  amount 


312  BOSDEN   V.    THINNE.  [CHAP.   I. 

ing  to  51Z.,  and  Flud,  super  credentiam  and  per  medium  of  the  plaintiff 
at  the  request  of  the  defendant,  emissct  of  one  Roberts  two  pipes  of  wine 
for  51/.,  and  superinde  the  plaintiff  with  Flud  entered  into  bond  of  100/. 
to  Roberts  for  pa^-ment  of  the  said  51/.  at  a  day  to  come,  which  was  not 
paid  at  the  day ;  and  thereupon  Roberts  sued  the  plaintiff  upon  the 
bond,  and  recovered,  and  had  a  capias  against  him,  whereby  he  fuit 
coactus  to  pay  Roberts  67/.,  de  solutione  of  which  07/.  causa  prcealiegata 
he  notified  to  the  defendant,  who  in  consider alione  prcemissorum  promised 
to  pay  the  plaintiff  the  67/.  at  Michaelmas  ;  and  showed  the  failure  of 
payment  of  the  67/.  at  the  day,  &c.  And  upon  non  assumpsit  pleaded, 
it  was  found  against  the  defendant.  And  Yelverton  moved  in  arrest  of 
judgment,  that  the  action  upon  the  matter  shown  does  not  lie,  because 
the  consideration  was  past  and  executed  before  the  promise,  and  the  de- 
fendant had  no  profit  by  it,  but  all  the  benefit  was  to  Flud,  a  stranger ; 
like  the  case  10  P^hz.,  T)j.  272,  where  J.  S.  was  bail  for  the  servant 
upon  an  arrest,  and  signified  all  to  the  master  after  the  bail  entered 
into,  who  promised  to  save  him  harmless ;  and  although  the  bail  was 
c  ondemned,  3'et  no  assumpsit  lay  against  the  master,  because  the  con- 
sideration was  past  before  the  promise :  and  it  seems  that  upon  the  first 
request  only  to  give  credit  to  Flud  for  two  pipes  of  wine,  no  assumpsit 
lies  ;  for  a  l)are  request  does  not  imply  any  promise  ;  as  if  I  say  to  a 
merchant,  I  pray  trust  J.  S.  with  100/.,  and  he  does  so,  this  is  of  his 
own  head,  and  he  shall  not  charge  me,  unless  I  say  I  will  see  3'ou  paid 
or  the  hke.  And  it  seems  hkewise  that  the  promise  shall  not  have  re- 
lation to  the  first  request  of  giving  credit  to  Flud,  because  the  entreaty 
for  the  credit  was  but  for  two  pipes  of  wine  amounting  to  51/.,  and  the 
promise  is  for  67/.,  and  so  they  differ  in  the  sums  ;  as  if  I  request  J.  S. 
to  enter  into  bond  for  J.  D.  for  10/.,  and  I  will  see  him  paid;  now  if 
J.  S.  enters  into  bond  of  20/.  for  the  payment  of  10/.  for  J.  D.,  which 
20/.  is  recovered  against  him,  he  shall  not  charge  me  on  my  promise 
but  10/.  But  non  allocatur  per  Fenner,  Gawdy,  and  Popham  ;  for 
although  upon  the  first  request  only  assumpsit  does  not  lie,  yet  the 
promise  coming  after  shall  have  reference  to  the  first  request;  and 
although  the  request  was  but  for  two  pipes  of  wine  amounting  to  51/., 
that  Flud  might  have  credit  for  that ;  yet  when  Roberts,  who  sold  the 
wine,  would  not  take  (as  appears)  security  but  b}  bond  of  100/.  for 
payment  of  51/.,  and  all  this  matter  is  signified  afterwards  to  the  de- 
fendant, who  agrees  to  it,  and  promises  to  pay  the  67/.,  this  shall  charge 
him ;  because  it  has  its  essence  and  commencement  from  the  first  re- 
quest made  by  the  defendant.  As  ( per  Gawdy)  if  I  request  one  to 
marry  my  cousin,  who  does  so,  and  afterwards  tells  me  of  it,  and  there- 
upon I  promise  him  100/.,  this  is  a  good  promise  to  charge  me,  although 
the  marriage  was  past,  which  is  the  consideration ;  because  now  the 
promise  shall  have  reference  to  the  request,  which  was  before  the  mar- 
riage. Vide  this  case,  Dy.  272  b.  The  same  law  (by  him)  if  I  entreat 
one  to  be  bail  for  my  servant,  and  he  thereupon  becomes  bail,  and  ia 
condemned,  and  afterwards  tells  me  of  it,  and  I  promise  him  to  save 


SECT,    n.]                            KOSCORLA    V.    THOIMAS.  813 

him  harmless,  it  is  good,  and  he    shall  recover  his  damage  in  toto. 

Wherefore  judgment  was  given  for  the  plaintiff.  But  Yelverton,  J., 
was  contra  clearly.^ 


'      ROSCORLA  «.  THOMAS. 
In  the  Queen's  Bench,  May  30,  1842. 


[Repoi-ted  in  3  Queen's  Bench  Reports,  234,] 

Assumpsit.  The  declaration  stated  that,  whereas  heretofore,  to  wit, 
&c.,  in  consideration  that  plaintiff  at  the  request  of  defendant  had 
bought  of  defendant  a  certain  horse,  at  and  for  a  certain  price,  &c.,  to 
wit,  &c.,  defendant  promised  plaintiff  that  the  horse  did  not  exceed  five 
years  old,  and  was  sound,  &c.,  and  free  from  vice  ;  nevertheless  defend- 
ant did  not  perform  or  regard  his  said  promise,  but  thereby  deceived 
and  defrauded  plaintiff  in  this,  to  wit,  that  the  said  horse  at  the  time  of 
the  making  of  the  said  promise  was  not  free  from  vice ;  but,  on  the 
contrary  thereof,  was  then  very  vicious,  restive,  ungovernable,  and 
ferocious  ;  whereb}',  &c. 

Pleas.     1.  Non  assumpsit.     Issue  thereon. 

2.  That  the  horse,  at  the  time  of  the  supposed  promise,  was  free  from 
vice,  and  was  not  vicious,  restive,  ungovernable,  or  ferocious,  in  man- 
ner, &c.  ;  conclusion  to  the  country.     Issue  thereon. 

On  the  trial,  befoi-e  Wightman,  J.,  at  the  Cornwall  Spring  Assizes, 
1841,  a  verdict  was  found  for  the  plaintiff  on  both  the  above  issues.  In 
Easter  Term,  1841,  Bompas.,  Serjt.,  obtained  a  nile  nisi  for  arresting 
*Jie  judgment  on  the  first  count.     In  last  Term 

Erie  and  Butt  shewed  cause.  The  objection  is,  that  the  first  count 
states  only  a  nnr/wm /)ac^?/m.  But  there  is  an  executed  consideration, 
which  with  a  request  will  support  a  promise.  Now  the  request  need  noc 
be  express  ;  wherever  the  law  will  raise  a  promise,  a  request  b}'  the 
party  promising  will  be  implied  ;  note  (c)  to  Osborne  v.  Rogers.^  Payne 
V.  Wilson  was  the  converse  of  the  present  case :  there  a  consideration, 
which  in  its  form  was  executed,  was  declared  on  as  executory  ;  and  this 
was  held  to  be  no  variance,  because  in  reality  the  consideration  was 
continuing.  Here  the  declaration  states  an  executed  consideration  in 
fornc  ;  but  it  is  practically  executory  because  the  sale  and  warranty 
would  be  coincident.  In  Thornton  v.  Jenyns  ^  the  declaration  charged 
that,  in  consideration  that  plaintiff  had  promised  to  defendant,  defend- 
ant then  promised  plaintiff.  It  was  objected  that  this  was  an  executed 
consideration  without  a  request,  which  was  insufficient  where  the  law 
would  not  raise  a  promise  ;  and  Brown  v.  Crump*  was  cited  ;  but  the 

1  Lampleigh  v.  Brathwait,  Hobart,  105,  and  other  decisions,  ace.  See  Langdell, 
Summary  of  Contracts,  §§  92-94. 

2  1  Wms.  Saund.  264  a.  3  i  Man.  &  G.  166.  *  1  Marsh.  567. 


314  BOSCOBLA   V.   THOMAS.  [CHAP  I. 

Court  hold  that  the  two  promises  might  be  considered  as  simultaneous, 
and  that  the  objection  therefore  could  not  be  sustained.'' 

Bompas,  Serjt.,  and  Slade,  contra.  The  warranty  ought  to  be  given 
at  the  time  of  the  sale :  if  made  after,  it  is  without  consideration.  3 
Blackst.  Com.  166  ;  Com.  Dig.,  Action  upon  the  Case  for  a  Deceipt 
(A.  11)  ;  Roswel  v.  Vaughan,-^  Pope  v.  Lewj^ns.'  Thornton  v.  Jenjns 
was  a  case  of  mutual  promises,  which  can  never  literaUj^be  made  at  the 
same  moment :  here  the  declaration  definitely  la3^s  the  perfect  sale  as 
antecedent  to  and  distinct  from  the  warrant3^  And  the  warranty  is  a 
matter  not  implied  bj'  the  law  upon  a  sale.  Parkinson  v  Lee.*  Even 
an  express  promise  without  a  legal  consideration  is  invalid.  Collins  v. 
Godefroy.®  In  Hopkins  v.  Logan  there  was  an  executed  consideration 
from  which  a  promise  to  pa}'  on  request  would  have  arisen  ;  and  it  was 
holden  that  this  did  not  supjDOrt  a  promise  to  pay  on  a  future  day  named. 
[Patteson,  J.,  referred  to  Hunt  v.  Bate,  as  cited  in  Eastwood  v.  Ken- 
yon,  and  to  Lampleigh  v.  Brathwait.]  Our.  adv.  ^»«/^ 

Loud  Denman,  C.  J.,  in  iJ.6  Term  (May  30)  delivered  the  judgment 
of  the  Court. 

This  was  an  action  of  assumpsit  for  breach  of  warranty  of  the  sound- 
ness of  a  horse.  The  first  count  of  the  declaration,  upon  which  alone 
the  question  arises,  stated  that,  in  consideration  that  the  plaintifl'  at  the 
request  of  the  defendant  had  bought  of  the  defendant  a  horse  for  the 
sum  of  30^.,  the  defendant  promised  that  it  was  sound  and  free  from 
vice.  And  it  was  objected,  in  arrest  of  judgment,  that  the  precedent 
executed  consideration  was  insufficient  to  support  the  subsequent  promise. 
And  we  are  of  opinion  that  the  objection  must  prevail. 

It  may  be  taken  as  a  general  nile,  subject  to  exceptions  not  applica- 
ble to  this  case,  tliat  the  promise  must  be  coextensive  with  the  consid- 
eration. In  the  present  case,  the  only  promise  that  would  result  from 
the  consideration  as  stated,  and  be  coextensive  Avith  it,  would  be  to  de- 
liver the  horse  upon  request.  The  precedent  sale  without  a  warranty, 
though  at  the  request  of  the  defendant,  imposes  no  other  duty  or  obliga- 
tion upon  him.  It  is  clear  therefore  that  the  consideration  stated  would 
not  raise  an  implied  {)romise  by  the  defendant  that  the  horse  was  sound 
or  free  from  \ice. 

But  the  promise  in  the  present  case  must  be  taken  to  be,  as  in  fact  it 
was.  express  ;  and  the  question  is,  whether  that  fact  will  warrant  the 
extension  of  the  promise  bej'ond  that  which  would  be  implied  by  law  ; 
and  whether  the  consideration,  though  insufficient  to  raise  an  implied 
promise,  will  nevertheless  support  an  express  one.  And  we  tliink  that 
it  will  not. 

The  cases  in  which  it  has  been  held  that,  under  certain  circumstances, 
a  consideration  insufficient  to  raise  an  implied  promise  will  nevertheless 

1  It  was  also  argued  that  the  warranty  might  here,  after  verdict,  be  taken  to  be 
coincident  with  the  sale :  to  which  it  was  answered  that  if  it  were  so,  the  evidenca 
negatived  the  declaration. 

2  Cro.  .Jac.  196.  s  Cro.  Jac.  630. 

♦  2  East.  314.  *  1  B.  &  Ad.  9.50. 


SECT   II.]  MOORE   V.   ELMER.  315 

support  an  express  one,  will  be  found  collected  and  reviewed  in  the 
note  (a)  to  "Wennall  v.  Adne}',^  and  in  the  case  of  Eastwood  v.  Ken- 
yon.  They  are  cases  of  voidable  contracts  subsequently  ratified,  of 
debts  barred  by  operation  of  law  subsequently  revived,  and  of  equita- 
ble and  moral  obligations  which,  but  for  some  rule  of  law,  would  of 
themselves  have  been  sufficient  to  raise  an  implied  promise.  All  these 
cases  are  distinguishable  from,  and  indeed  inapplicable  to,  the  present, 
which  appears  to  us  to  fall  ^-ithin  the  general  rule,  that  a  consideration 
past  and  executed  will  support  no  other  promise  than  such  as  would  be 
implied  by  law. 

The  rule  for  arresting  the  judgment  upon  the  first  count  must  there- 
fore be  made  absolute.  EiUe  absolute."^ 


JOSEPHINE   L.   MOORE  v.   NELSON   L.   ELMER   & 
Another,  Administrators. 

Supreme  Judicial  Court  of  Massachusetts,  September  24- 
OCTOBER  18,    1901. 

[Reported  in  180  Massachusetts,  15.] 

Bill  in  Equity  by  the  owner  of  certain  land  subject  to  a  mortgage 
assumed  by  her,  to  restrain  the  administrators  of  Willard  Elmer,  the 
holders  of  the  mortgage,  from  foreclosing  it,  or  disposing  of  it  and 
the  note  secured  thereby,  and  for  an  order  to  the  defendants  to  dis- 
charge the  mortgage  and  cancel  the  note,  filed  July  7,  1900. 

The  bill  alleged  that  the  plaintiff  was  the  owner  of  a  tract  of  land 
to  which  she  derived  title  by  a  deed  of  one  Herman  E.  Bogardus,  by 
which  deed  she  assumed  and  agreed  to  pay  a  certain  mortgage  of  the 
premises  given  by  Bogardus,  which  mortgage  and  the  note  for  $1,300 
thereby  secured  had  been  assigned  to  Willard  Elmer,  the  defendants' 
intestate,  that  the  defendants'  intestate  on  or  about  January  11,  1898, 
executed  and  delivered  to  the  plaintiff  the  following  agreement: 
"Springfield,  Mass.,  Jan.  11,  1898.  In  Consideration  of  Business 
and  Test  Sittings  Reseived  from  Mme  Sesemore,  the  Clairvoyant, 
otherwise  known  as  Mrs.  Josephene  L.  Moore  on  Numerous  occa- 
sions I  the  undersighned  do  hear  by  agree  to  give  the  above  naned 
Josephene  or  her  heirs,  if  she  is  not  alive,  the  Balance  of  her  Mort- 
gage note  whitch  is  the    Herman   E.   Bogardus   Mortgage  note  of 

1  3  Bos.  &  Pul.  249. 

2  "  In  Lampleigh  v.  Brathwait,  it  was  assumed  that  the  journeys  which  the  plain- 
tiff performed  at  the  request  of  the  defendant,  and  the  other  services  he  rendered, 
would  liave  been  sufficient  to  make  any  promise  binding  if  it  had  been  connected  there- 
with in  one  contract ;  the  peculiarity  of  the  decision  lies  in  connecting  a  subsequent 
promise  with  a  prior  consideration  after  it  had  been  executed.  Probably  at  the  pres- 
ent day,  such  service  on  such  request  would  have  raised  a  promise  by  implication  to 
pay  what  it  was  worth  ;  and  the  subsequent  promise  of  a  sum  certain  would  liave  been 
eridence  for  the  jury  to  fix  the  amount."  —  Erie,  C.  J.,  Kennedy  v.  Broun,  13  C.  B. 
N.  8.  677,  "40.     See  also  Stewart  v.  Casey,  [1892]  1  Ch.  104,  115. 


^16  '  MOORE   V.   ELMER.  [CHAP.   I. 

Jan.  5,  1893,  and  the  Interest  on  same  on  or  after  the  last  day  of 
Jan.  1900,  if  my  Death  occurs  before  then  whitch  she  has  this  day 
Predicted  and  Claims  to  be  the  truth,  and  whitch  I  the  undersighned 
Strongly  doubt.  Wherein  if  she  is  right  I  am  willing  to  make  a 
Recompense  to  her  as  above  stated,  but  not  payable  unless  death 
Occurs  before  1900.     Willard  Elmer." 

The  bill  alleged,  that  by  the  foregoing  instrument  the  premises 
were  released  and  discharged  from  the  operation  of  the  mortgage 
deed,  and  the  note  secured  thereby  was  paid  in  full  and  became  null 
and  void,  upon  the  death  of  Willard  Elmer,  which  occurred  before 
the  year  1900,  to  wit,  on  September  15,  1899. 

The  bill  also  alleged,  that  before  the  execution  of  the  above  agree- 
ment, at  the  request  of  Willard  Elmer,  the  plaintiff  gave  to  Elmer  the 
business  and  test  sittings  referred  to  in  the  agreement  as  the  con- 
sideration for  the  agreement,  and  at  his  request  devoted  much  time 
and  labor  thereto. 

The  defendants  demurred,  and  among  the  causes  of  demurrer 
alleged,  that  the  above  agreement  annexed  to  the  bill  was  a  wager- 
ing contract  and  against  public  policy  and  void,  and  that  it  was 
without  consideration. 

In  the  Superior  Court  the  case  was  heard  by  Lawton,  J.,  who 
made  a  decree  sustaining  the  demurrer  and  dismissing  the  bill.  The 
plaintiff  appealed;  and,  at  the  request  of  the  plaintiff,  the  judge 
reported  the  case  for  the  determination  of  this  court.  If  the  de- 
murrer was  sustained  rightly,  the  bill  was  to  be  dismissed;  other- 
wise, the  demurrer  was  to  be  overruled  and  the  defendants  were  to 
answer  to  the  plaintiff's  bill. 

W.  H.  McCliiitock  (J.  B.  Carroll  with  him)  for  the  plaintiff. 

C.  W.  Bosu-orth,  for  the  defendants. 

Holmes,  C.  J.  It  is  hard  to  take  any  view  of  the  supposed  con- 
tract in  which,  if  it  were  made  upon  consideration,  it  would  not  be 
a  wager.  But  there  was  no  consideration.  The  bill  alleges  no  debt 
of  1-Clmer  to  the  plaintiff  prior  to  the  making  of  the  writing.  It 
alleges  only  that  the  plaintiff  gave  him  sittings  at  his  request.  This 
may  or  may  not  have  been  upon  an  understanding  or  implication  that 
he  was  to  pay  for  them.  If  there  was  such  an  understanding  it 
should  have  been  alleged  or  the  liability  of  Elmer  in  some  way 
shown.  If,  as  we  must  assume  and  as  the  writing  seems  to  imply, 
there  was  no  such  understanding,  the  consideration  was  executed  and 
would  not  support  a  promise  made  at  a  later  time.  The  modern 
authorities  which  speak  of  services  rendered  upon  request  as  support- 
ing a  promise  must  be  confined  to  cases  where  the  request  implies  an 
undertaking  to  pay,  and  do  not  mean  that  what  was  done  as  a  mere 
favor  can  be  turned  into  a  consideration  at  a  later  time  by  the  fact 
that  it  was  asked  for.  See  Langdell,  Contracts,  §§  92  et  seq.;  Cham- 
berlin  v.  Whitford,  102  Mass.  448,  450;  Dearborn  v.  Bowman,  3  Met.^ 
155,  158;  Johnson  v.  Kimball,  172  Mass.  ^98,  400. 

It  may  be  added  that  even  if  Elmer  was  under  a  previous  liability 


SECT,  n.]  edmond's  case.  317 

to  the  plaintiff  it  is  not  alleged  that  the  agreement  sued  upon  was 
received  in  satisfaction  of  it,  either  absolutely  or  conditionally,  and 
this  again  cannot  be  implied  in  favor  of  the  plaintifTs  bill.  It  is 
not  necessary  to  consider  what  further  difficulties  there  might  be  in 
the  way  of  granting  relief. 

Bill  dismissed} 


EDMONDS'     CASE. 
In  the  Common  Pleas,  Michaelmas  Term,  1586. 

[Reported  in  o  Leonard,  164.] 

In  an  action  upon  the  case  against  Edmonds,  the  case  was,  that  the 
defendant,  being  within  age,  requested  the  plaintiff  to  be  bounden  for 
him  to  another  for  the  payment  of  30/.,  which  he  was  to  borrow  for 
his  own  use ;  to  which  the  plaintiff  agreed,  and  was  bounden,  ut  supra. 
Afterwards  the  plaintifl'  was  sued  for  the  said  debt,  and  paid  it.  And 
afterwards,  when  the  defendant  came  of  full  age,  the  plaintiff  put  him 
in  mind  of  the  matter  aforesaid,  and  prayed  that  he  might  not  be  dam- 
nified so  to  pay  30?.,  it  being  the  defendant's  debt:  whereupon  the 
defendant  promised  to  pay  the  debt  again  to  the  plaintiff :  upon  which 
promise  the  action  was  brought.  And  it  was  holden  by  the  Court  that, 
although  here  was  no  present  consideration  upon  which  the  assumpsit 
could  arise,  yet  the  court  was  clear  that  upon  the  whole  matter  the 
action  did  lie  ;  and  judgment  was  given  for  the  plaintiff.^ 

1  Walker  v.  Brown,  104  Ga.  357  ;  Allen  v.  Bryson,  67  la.  591 ;  Walker  v.  Irwin,  94 
la.  448 ;  Holloway  v.  Eudy,  60  S.  W.  Rep.  650  (Ky.) ;  Cleaver  v.  Lenhart,  182  Pa.  285  ; 
Stoneburner  v.  Motley,  95  Va.  784,  ace.  See  also  Marsh  v.  Chown,  104  la.  556 ;  Beaty 
V.  Carr,  109  la.  183  ;  Shepard  v.  Rhodes,  7  R.  I.  470. 

Bradford  v.  Roulston,  8  Ir.  C.  L.  468  ;  Lonsdale  v.  Brown,  4  Wash.  C.  C.  148,  150  ; 
Viley  V.  Pettit,  96  Ky.  578;  Pool  v.  Horner,  64  Md.  131  ;  Stuht  v.  Sweesy,  48  Neb. 
767  ;  Wilson  v.  Edmonds,  24  N.  H.  502 ;  Hicks  v.  Burhans,  10  Johns.  243 ;  Oatfield 
V.  Waring,  14  Johns.  188;  Greeves  v.  M'Allister,  2  Binn.  592  ;  Landis  v.  Royer,  59 
Pa.  95  ;  Sutch's  Estate,  201  Pa.  305 ;  Silverthorn  v.  Wylie,  96  Wis.  69  ;  Raife  v. 
Gorrell,  105  Wis.  636,  contra.  See  also  Carson  v.  Clark,  2  111.  113;  Montgomery  v. 
Downey,  88  N.  W.  Rep.  810  (la.);  Freeman  v.  Robinson,  38  N.  J.  L.  383;  Chaffee 
i".  Thomas,  7  Cow.  358  ;  Comstock  v.  Smith,  7  Johns.  87  ;  Boothe  i'.  Fitzpatrick,  36 
Vt.  681;  Seymour  v.  Marlboro,  40  Vt.  171. 

*  In  the  report  of  the  same  case  in  Godb.  138,  nom.  Barton  and  Edmonds'  Case,  it 
is  said  :  "  But  if  a,  feme  covert  and  another  at  her  request  had  been  bounden  in  such  a 
bond,  and  after  the  death  of  her  husband  she  had  assumed  to  have  saved  the  other 
harmless  against  such  bond,  such  assumpsit  should  not  have  bound  the  wife." 

Many  cases  in  accord  with  Edmonds'  Case  are  collected  in  16  A.  &  E.  Encyc.  of 
Law  (2d  ed.),  300  seq.  See  also  a  note  to  Craig  v.  Van  Bebber,  100  Mo.  584,  in  18  Am. 
St.  Rep.  569.  Since  the  Infants  Relief  Act,  37  &  38  Vict.  c.  62,  in  England,  however, 
all  contracts  of  infants  except  for  necessaries  are  absolutely  void  and  cannot  be 
ratified. 


318  ATKINS   V.  HILL.  [CHAP.   I. 


^t^^- 


WATSON  V.   TURNER  et  al. 
In  the  Exchequer,  Trinity  Term,  1767. 

[Reported  in  Bullet's  Nisi  Prius,  129.] 


An  action  was  brought  by  an  apothecary  against  the  overseers  of 
a  parish  for  the  cure  of  a  pauper,  who  boarded  with  her  son  out  of 
the  parish,  under  an  agreement  made  with  him  by  the  defendant  Tur- 
ner, who  was  the  onl}^  acting  overseer  of  the  parish.  The  pauper  was 
suddenly  taken  ill,  and  her  son  called  in  the  plaintiff,  who  had  at- 
tended her  for  four  months,  and  cured  her.  After  the  cure  Turner  was 
applied  to,  and  promised  to  pa}'  the  plaintiflTs  bill.  It  was  held,  that 
though  there  was  no  precedent  request  from  the  overseers,  yet  the 
promise  was  good,  notwithstanding  the  Statute  of  Frauds ;  for  over- 
seers are  under  a  moral  obligation  to  provide  for  the  poor.  Secondly, 
that  as  Tmner  was  the  only  acting  overseer,  the  other  was  bound  by 
his  promise.* 


,^/ 


^^V'  ATKINS   et  Uxor  v.   HILL. 


In  the  King's  Bench,  Easter  Term,  1775. 

[Reported  in  Cowper,  284.] 

In  assumpsit  the  plaintiffs  declared  against  Charles  Hill,  being  in  the 
custody,  &c. :  For  that  whereas  James  Clarke,  &c.,  by  his  last  will, 
«fec.,  did  give  and  bequeath  to  the  plaintiff's  wife  the  sum  of  60^.,  &c., 
and  of  his  last  will  and  testament  made  the  said  Charles  Hill  sole 
executor,  &c.,  and  the  said  Charles  Hill  took  upon  himself  the  burthen 
and  execution  of  the  said  will:  And  the  said  N.  and  A.  further  say 
that  divers  goods  and  chattels,  «&c.,  afterwards,  &c.,  came  to  the  hands 
of  the  said  Charles  Hill  as  executor  of  the  said  J.  C,  which  said  goods 
and  chattels  were  more  than  sufficient  to  satisfy  and  pay  all  the  just 
debts  and  legacies  of  the  said  J.  C,  &c.,  of  which  the  said  C.  H.  then 
and  there  had  notice :  By  reason  of  which  said  premises,  the  said 
Charles  Hill  became  liable  to  pay  to  the  said  N.  and  A.  the  said  sum 
of  60^.  ;  and,  being  so  liable,  he,  the  said  C,  in  consideration  thereof, 
afterwards,  &c.,  undertook  and  faithfully  promised  to  pay  to  them  the 
said  sum  of  60/.,  whenever,  &c. 

To  this  declaration  the  defendant  demurred  generally. 

Mr.  Le  Blanc,  in  support  of  the  demurrer.^ 

Mr.  Buller,  contra,  for  the  plaintiff.  The  question  is,  whether  the 
facts  stated  in  this  declaration,  namely,  that  the  defendant  was  exeou- 

1  See  Paynter  v.  Williams,  1  Cr.  &  M.  810.  — Ed. 

2  Only  so  much  of  the  argument.-  and  (iocision  is  here  given  as  relates  to  the  que« 
Uoa  of  "  Consideratioa."  —  Ed. 


SECT.    II.]  ATKINS    V.   HILL.  319 

tor  and  had  assets,  &c.,  are  a  sufficient  consideration  for  a  promise. 
As  to  that  question,  it  is  a  settled  point  that,  wherever  an  ^xpresa 
promise  is  made  upon  a  good  consideration,  an  action  lies.  And  the 
slightest  gi'ouud  is  suflicient  to  maintain  a  promise.  1  Vent.  40,  41, 
Wells  V.  Wells;  1  Lev.  273,  s.  c.  ;  Stone  v.  Withipool,  Latch,  21.  in 
which  latter  case  it  is  laid  down,  "that  it  is  an  usual  allegation  for  a 
rule,  that  any  thing  which  is  a  ground  for  equity  is  a  sufficient  consid- 
eration." 

But  here  an  ex^jress  promise  is  made,  and  by  the  demurrer  admitted. 
It  is  objected,  however,  that  there  is  no  aveiTuent  that  the  funeral 
expenses  are  paid.  The  answer  is,  it  is  aveiTcd  that  he  had  assets  to 
pay,  which  is  alone  sufficient,  and  so  it  was  expressl}'  held  by  Lord 
King,  in  the  case  of  Camden  v.  Turner,  Sittings  after  Tr.,  5  Geo.  I., 
C.  B.  ;  Select  Cases  of  Evidence  b}-  Sir  John  Strange. 

Lord  Mansfield.  This  is  a  case  in  which  the  declaration  particu- 
larly states  that  assets  have  been  received  by  the  defendant,  the  exec- 
utor, more  than  sufficient  to  pay  all  the  testatoi-'s  debts  and  legacies. 
If  so,  it  most  undoubtedly  must  be  taken  upon  the  pleadings  that  there 
was  sufficient  to  discharge  the  funeral  expenses,  because  they  are  pay- 
able first ;  consequently,  if  there  was  less  than  the  amount  of  them, 
there  could  not  be  sufficient  to  discharge  the  debts  and  legacies.  The 
declaration  then  goes  on  to  state  that,  in  consideration  of  there  being 
full  sufficient  assets  as  aforesaid,  the  defendant  undertook  and  promised 
to  pay  the  plaintiff  his  legacy.  No  doubt  then  but,  at  any  time  after 
an  executor  has  assented,  the  property  vests  ;  and  if  it  be  a  pecuniary 
legac\',  an  action  at  law  will  lie  for  the  recovery  of  it.  Formerly, 
upon  a  bill  being  filed  in  chancer}-  against  an  executor,  one  part  of  the 
prayer  of  it  was,  that  he  should  assent  to  the  bequests  in  his  testator's 
will.  If  he  had  assets,  he  was  bound  to  assent.  And  when  he  had 
assented,  the  legacy  became  a  demand  which  in  law  and  conscience  he 
was  liable  to  pa}'.  But,  in  the  present  case,  there  is  not  only  an  assent 
to  the  legacy,  but  an  actual  promise  and  undeitaking  to  pay  it ;  and 
that  promise  founded  on  a  good  consideration  in  law,  as  appears  from 
the  cases  cited  by  jVIr.  Buller,  particularly  the  case  of  Camden  v.  Tur- 
ner,^ where  acknowledgment  b}'  an  executor,  "that  he  had  enough  to 
pay,"  was  held  a  sufficient  ground  to  support  an  assumpsit.  Here  the 
defendant,  by  his  demurrer,  admits  he  had  sufficient  to  pa}' ;  therefore 
this  is  not  the  case  that  Mr.  Le  Blanc  has  been  arguing  upon ;  but  it  is 
the  case  of  a  promise  made  upon  a  good  and  valuable  consideration, 
which,  in  all  cases,  is  a  sufficient  ground  to  support  an  action.  It  is  so 
in  cases  of  obligations  which  would  otherwise  only  bind  a  man's  con- 
science, and  which,  without  such  promise,  he  could  not  be  compelled 
to  pay.  For  instance,  where  an  infant  contracts  debts  during  his 
minority ;  if  after  he  comes  of  age  he  consents  to  pay  them,  an  action 
lies.  So  a  conveyance  executed  by  an  infant,  which  he  was  compella- 
ble to  do  by  equity,  is  a  good  conveyance  at  law.  Co.  Lit.,  Attornment. 
315  a.  In  this  case  the  promise  is  gi'ounded  uj^on  a  reasonable  an'' 
conscientious  consideration  ;  namely,  that  the  defendant  had  assets  to 

1  Sittings  after  Trinity  Term,  5  Geo.  I.,  C.  B.,  coram  King,  C.  J. 


320  TRUEMAN   V.   FENTON.  [OHAP.   1. 

discharge  the  legacy.     If  so,  he  was  compellable  in  a  court  of  equity, 
or  in  the  ecclesiastical  court,  to  pay  it.     I  give  my  opinion  upon  this 
case  as  it  stands  ;  that  is,  that  it  is  an  express  promise  made  upon  a 
good  and  sufficient  consideration. 
The  three  other  judges  concurred. 

Per  Cur.     Judgment  for  tlie  plaintiff} 

Mr.  Le  Blanc  then  moved  for  liberty  to  withdraw  the  demurrer,  and 
plead  the  general  issue ;  but  the  Court  refused  it. 


TRUEMAN  V.  FENTON. 
Ik  the  King's  Bench,  January  28,  1777. 

[Reported  in  Cowper,  544.] 

Tms  was  an  action  on  a  promissory  note,  bearing  date  the  llth 
Febniax-y,  1 775,  pa^^able  to  one  Joseph  Trueman  (the  plaintiff's  brother) , 
three  months  after  date,  for  67^.,  and  indorsed  by  him  to  the  plaintiff. 

T'Le  declaration  contained  other  counts  for  goods  sold,  money  ha* 
and  received,  and  on  an  account  staterl.  The  defendant  plead&d,  first, 
non  assumpsit;  secondly,  "that  on  the  19th  January,  1775,  he  be- 
came bankrupt,  and  that  t.he  debt  for  wliicii  the  said  note  was  given 
was  due  to  the  plaintiff  before  such  time  as  he,  the  defendant,  became 
bankrupt,  and  that  the  note  was  given  to  Joseph  Trueman  for  the  use 
of,  and  for  securing  to,  the  said  plaintiff  his  debt  so  due."  The  cause 
was  tried  before  Lord  Mansfield  at  the  Sittings  after  Michaelmas  Term, 
1776,  when  the  jury  found  a  verdict  for  the  plaintiff,  damages  72/.  12s., 
costs  40.'i.,  subject  to  the  opinion  of  the  Coui't  upon  a  special  case,  stat- 
ing the  answer  of  the  plaintiff  in  this  action  to  a  bill  filed  against  him 
in  the  Exchequer  b}'  the  present  defendant  for  a  discovery  of  the  con- 
sideration of  the  note  ;  the  substance  of  which  was  as  follows:  "That 
on  the  15th  of  December,  1774,  the  defendant,  Fenton,  purchased  a 
quantit}'  of  linen  of  the  plaintiff",  Trueman  ;  and  it  being  usual  to  abate 
6/.  per  cent  to  persons  of  the  defendant's  trade,  the  price,  after  sucii 
abatement  made,  amounted  to  126/.  18s.  That  at  the  time  of  the  sale 
it  was  agreed  that  one-half  of  the  purchase-monej'  should  be  paid  at 
the  end  of  six  weeks,  and  the  other  half  at  the  end  of  two  months : 
And  in  consideration  thereof,  the  plaintiff,  Trueman,  drew  two  notes  on 
the  defendant  for  63/.  9s.  each,  paj'able  to  his  own  order,  at  six  weeks 
and  two  months  respectively.  That  the  defendant  accepted  the  notes, 
and  thereupon  the  plaintiff  gave  him  a  discharge  for  the  sum.  He 
then  denied  that  he  had  proved  or  claimed  an}-  debt  or  sum  of  money 
under  the  commission  ;  but  set  forth  that  he  acH[uainted  the  defendant 
he  was  surprised  at  his  ungenerous  behavior  in  purchasing  so  large  a 
quantity  of  linen  of  him  at  the  eve  of  his  bankruptcy,  and  informed 

1  Hawkes  v.  Saunders,  Cowp.  289,  ace.  But  see  Smith  v.  Carroll,  112  Pa.  390-* 
Dauham  v.  Elford,  13  Rich.  Eq.  190. 


SECT.    II.]  TRUEMAN    V.   FENTON.  321 

him  he  had  paid  away  the  above  two  notes  :  upon  which  the  defendant 
pressed  him  to  take  up  the  two  notes,  and  proposed  to  give  him  a 
iecunty  for  part  of  the  debt.  That  afterwards,  on  the  11th  February, 
1775,  the  defendant  called  upon  the  plaintiff,  and  voluntarily  proposed 
to  secure  to  him  the  pa^-ment  of  67Z.  in  satisfaction  of  his  debt,  if  he 
would  take  up  the  two  notes  and  cancel  or  deUver  them  up  to  the 
defendant.  That  the  plaintiff  agreed  to  accept  this  proposal  with  the 
approbation  of  his  attorney,  and  desired  the  note  to  be  made  payable 
to  his  brother,  Joseph  Trueman,  or  order,  three  months  after  date. 
That  he  took  up  the  two  acceptances  and  delivered  them  to  the  defend- 
ant to  be  cancelled,  and  accepted  the  above  note  for  137/.  in  satisfaction 
and  discharge  thereof.  That  a  commission  of  bankruptcy  issued  against 
the  defendant  on  the  19th  of  Januarj',  1775,  and  that  the  bankrupt 
obtained  his  certificate  on  the  17th  of  April  following."  The  question 
reserved  was.  Whether  the  facts  above  stated  supported  the  merits  of 
the  defendant's  plea?  If  the}'  did  not,  then  a  verdict  was  to  be  entered 
for  the  plaintiff  on  the  general  issue ;  but  if  the  merits  of  the  second 
plea  supported  the  defendant's  case,  then  a  verdict  was  to  be  entered 
for  the  defendant  on  that  plea. 

Mr.  Buller^  for  the  plaintiff. 

Mr.  TJav'nport,  contra. 

Lord  IManskii:ld.  Tiie  plea  put  in,  in  this  case,  is  that  the  debt 
was  due  at  tlie  time  df  the  act  of  bankruptcy  committed  ;  and  on  that 
plea,  in  point  of  form,  there  was  a  strong  objection  made  at  the  trial 
that  the  allegation  was  not  strictly  true  ;  because  at  the  time  of  the 
sale,  credit  was  given  to  a  future  day ;  which  day,  as  it  appeared  in 
evidence,  was  subsequent  to  the  act  of  bankraptcy  committed.  To  be 
sure,  on  the  form  of  the  plea,  the  defendant  must  fail.  But  I  never 
like  to  entangle  justice  in  matters  of  form,  and  to  turn  parties  round 
upon  frivolous  objections  where  I  can  avoid  it.  It  only  tends  to  the 
ruin  and  destruction  of  both.  I  put  it  therefore  to  the  counsel  on  the 
part  of  the  plaintiff  to  give  up  the  objection  in  point  of  form,  and  to 
wlke  the  opinion  of  the  Court,  whether,  according  to  the  facts  and  tnith 
of  the  case,  the  defendant  could  have  pleaded  his  certificate  in  bar  of 
the  debt  in  question  ;  and  in  case  they  had  refused  to  do  so,  I  should 
have  left  it  to  the  jury  upon  the  merits.  The  counsel  for  the  plaintiff 
very  properly  gave  up  the  point  of  forai.  The  question,  therefore, 
upon  the  case  reserved,  is  worded  thus  :  Whether  the  facts  support  the 
merits  of  the  defendant's  plea?  That  is,  Whether,  on  the  merits  of  the 
case,  properly  pleaded,  the  certificate  of  the  defendant  would  have  been 
&  bar  to  the  plaintiff's  action  ?  Now,  in  this  case  there  is  no  fraud,  no 
oppression,  no  scheme  whatsoever  on  the  part  of  the  plaintitf  to  deceive 
or  impose  on  the  defendant ;  and  as  to  collusion  with  respect  to  the  cer- 
tificate, where  a  creditor  exacts  terms  of  his  debtor  as  the  consideration 
for  signing  his  certificate,  and  obtains  money  or  a  part  of  his  debt  for 
so  doing,  the  assignees  ma}'  recover  it  back  in  an  action.  But  that  is 
not  the  case  here.  8o  far  from  it,  the  transaction  itself  excVided  the 
plaintiff  from  having  any  thing  to  do  with  the  certificate.     Nm  man 

VOT..    I.  —  21 


322  TRUEMAN   V.   FENTON.  [CHAP.    I. 

can  vote  for  or  against  the  certificate  till  he  has  proved  his  debt.  Here 
the  plaintiff  delivers  up  the  two  drafts  bearing  date  prior  to  the  act  of 
bankruptcy,  and  b}'  agreement  accepts  one  for  little  more  than  half 
their  amount,  bearing  date  after  the  commission  of  bankruptcy  sued 
out.  Most  clearl}-,  therefore,  he  could  not  have  proved  that  note  under 
the  commission  ;  and  if  not,  he  could  have  nothing  to  do  with  the  cer- 
tificate. That  brings  it  to  the  general  question.  Whether  a  bankrupt, 
after  a  commission  of  bankruptcy  sued  out,  may  not,  in  consideration 
of  a  debt  due  before  the  bankruptcy,  and  for  which  the  creditor  agrees 
to  accept  no  dividend  or  benefit  under  the  commission,  make  such 
creditor  a  satisfaction  in  part  or  for  the  whole  of  his  debt,  by  a  new 
undertaking  and  agreement?  A  bankrupt  may  undoubtedly  contract 
new  debts ;  therefore,  if  there  is  an  objection  to  his  reviving  an  old 
debt  by  a  new  promise,  it  must  be  founded  upon  the  ground  of  its 
being  nudum  pactum.  As  to  that,  all  the  debts  of  a  bankrupt  are  due 
in  conscience,  notwithstanding  he  has  obtained  his  certificate ;  and 
there  is  no  honest  man  who  does  not  discharge  them,  if  he  afterwards 
has  it  in  his  power  to  do  so.  Though  all  legal  remed}'  may  be  gone, 
the  debts  are  clearl}'  not  extinguished  in  conscience.  How  far  have 
the  courts  of  equity  gone  upon  these  principles?  Where  a  man 
demises  his  estate  for  paj'ment  of  his  debts,  a  court  of  equity  says 
(and  a  court  of  law  in  a  case  properly  before  them  would  say  the 
same)  :  All  debts  barred  by  the  Statute  of  Limitations  shall  come  in 
and  share  the  benefit  of  the  devise,  because  they  are  due  in  con- 
science. Therefore,  though  barred  by  law,  they  shall  be  held  to  be 
revived  and  charged  by  the  bequest.  What  was  said  in  the  argument 
relative  to  the  reviving  a  promise  at  law,  so  as  to  take  it  out  of  the 
Statute  of  Limitations,  is  very  true.  The  slightest  acknowledgment 
has  been  held  suflScient ;  as  saying,  "Prove  3'our  debt,  and  I  will  pay 
you,"  —  "I  am  ready  to  account,  but  nothing  is  due  to  you."  And 
much  slighter  acknowledgments  than  these  will  take  a  debt  out  of  the 
statute.  So  in  the  case  of  a  man,  who  after  he  comes  of  age  prom- 
ises to  pay  for  goods  or  other  things,  which  during  his  minority  one 
cannot  saj'  he  has  contracted  for,  because  the  law  disables  him  from 
making  any  such  contract,  but  which  he  has  been  fairly  and  honestly 
supplied  with,  and  which  were  not  merely  to  feed  his  extravagance, 
but  reasonable  for  him  (under  his  circumstances)  to  have  ;  such  prom- 
ise shall  be  binding  upon  him,  and  make  his  former  undertaking  good. 
Let  us  see  then  what  the  transaction  is  in  the  present  case.  The  banlf- 
rupt  appears  to  me  to  have  defrauded  the  plaintiff  by  drawing  him  in, 
on  the  eve  of  a  bankruptcy,  to  sell  him  such  a  quantity  of  goods  on 
credit.  It  was  grossly  dishonest  in  him  to  contract  such  a  debt,  at  a 
time  when  he  must  have  known  of  his  own  insolvency,  and  which  it  is 
clear  the  plaintiff  had  not  the  smallest  suspicion  of,  or  he  would  not 
have  given  cretiit  and  a  day  of  payment  in  fuiuro.  On  the  other  hand, 
wnat  is  the  conduct  of  the  plaintiff  ?  He  relinquishes  all  hope  or 
chance  of  benefit  from  a  dividend  under  the  connnission,  by  forbearniL!; 
to  pr-'ve  his  debt;    rives  up  the  securities  he  had  received  from  tiio 


SECT.   II.]  GKANT  V.   PORTER.  323 

l)ankrupt,  and  accepts  of  a  note,  amounting  to  little  more  than  half 
the  real  debt,  in  full  satisfaction  of  his  whole  demand.  Is  that  against 
conscience  ?  Is  it  not  on  the  contrary  a  fair  consideration  for  the  note 
in  question?  He  might  foresee  prospects  from  the  wa}'  of  life  the 
bankrupt  was  in,  which  might  enable  him  to  recover  this  part  of  his 
debt,  and  he  takes  his  chance ;  for  till  then  he  could  get  nothing  by 
the  mere  imprisonment  of  his  person.  He  uses  no  threats,  no  menace, 
no  oppression,  no  undue  influence  ;  but  the  proposal  first  moves  from, 
and  is  the  bankrupt's  own  voluntary  request.  The  single  question 
then  is,  Whether  it  is  possible  for  the  banlcrupt,  in  part  or  for  the  whole, 
to  revive  the  old  debt?  As  to  that,  Mr.  Justice  Aston  has  sug- 
gested to  me  the  authority  of  Bailey  v.  Dillon,  where  the  Court  would 
not  hold  to  special  bail,  but  thought  reviving  the  old  debt  was  a  good 
consideration.  The  two  cases  cited  by  Mr.  Buller  are  very  material. 
Lewis  V.  Chase,  1  P.  Wms.  620,  is  much  stronger  than  this ;  for  that 
smelt  of  the  certificate  ;  and  the  Lord  Chancellor's  reasoning  goes  fully 
to  the  present  question.  Then  the  case  of  Barnardiston  v.  Coupland, 
in  C.  B.,  is  in  point.  Lord  Chief  Justice  Willes  there  says,  "  that  the 
revival  of  an  old  debt  is  a  sufficient  consideration."  That  determines 
the  whole  case.  Therefore  I  am  of  opinion  that,  if  the  plea  put  in  had 
been  formally  pleaded,  the  merits  of  the  case  would  not  have  been 
sufficient  to  bar  the  plaintiff's  demand. 

Aston,  J.  As  a  case  of  conscience,  I  am  clearly  of  opinion  that 
the  plaintiflT  is  entitle"  Wherever  a  party  waives  his  right  to  come 
in  under  the  commission,  it  is  a  benefit  to  the  rest  of  the  creditors. 
In  the  case  of  Bailey  v.  Dillon,  the  Court  on  the  last  day  of  the  Term 
were  of  opinion,  "  that  the  defendant  could  not  be  held  to  special  bail, 
yet  they  would  not  say  that  he  might  [not?]  revive  the  old  debt  which 
was  clearly  due  in  conscience."  A  bankrupt  may  be  and  is  held  to  be 
discharged  by  his  certificate  from  all  debts  due  at  the  time  of  the  com- 
mission ;  but  still  he  may  make  himself  liable  by  a  new  promise.  If  he 
could  not,  tlie  [)rovision  in  the  Stat.  5  Geo.  II.,  c.  30,  sect.  11,  by  which 
every  security  for  the  payment  of  any  debt  due  befoi-e  the  party  became 
bankrupt,  as  a  consideration  to  a  creditor  to  sign  his  certificate,  is  made 
void,  would  be  totally  nugatory.  —  Lord  Mansfield  added  that  this 
observation  was  extremely  forcible  and  strong. 

Per  Cur.     Judgrnent  for  the  plaintiff } 


GRANT  V.  PORTER. 
New  Hampshire  Supreme  Court,  June,  1884. 

[Reported  in  63  New  Hampshire,  229.] 

Allkn,  J.     The  plaintiff  and  the  other  creditors  of  Porter  Brothers 
(of  which  firm  the  defendant  is   sued  as  surviving  partner)  each  ac- 

^  The  cases  on  promises  to  pay  debts  discharged  by  bankraptcy  are  collected  in 
Williston's  Cases  on  Bankruptcy,  p.  640. 


324  GBAilT  V.   PORTER.  [OHAP.   I. 

cepted  an  offer  of  forty-five  per  centum  of  his  claim  in  full  settle- 
ment, and  Hodgdon,  who  received  all  the  debtors'  property  for  the 
purpose  of  paying  the  amount  agreed  upon  as  a  compromise  and  ob- 
taining from  the  creditors  a  discharge  of  the  indebtedness,  gave  each 
creditor  a  note  or  forty-five  'per  centum,  of  his  claim,  and  at  the  same 
time  took  an  assignment  from  each,  under  seal,  of  his  demand  and 
of  the  right  to  prosecute  it  to  final  judgment.  These  notes,  includ- 
ing the  plaintiff's,  were  subsequently  paid  by  Hodgdon,  and  Porter 
Brothers  ^ave  the  plaintiff  the  note  in  suit  for  the  balance  of  his 
demand. 

Ordinarily,  payment  and  acceptance  of  a  smaller  sum  for  a  larger 
one  due  is  no  discharge  of  the  larger.  Blanchard  v.  Noyes,  3  N.  H. 
519;  Mathewson  v.  Bank,  45  N.  H.  104,  107.  But  payment  by  a 
third  person  at  the  request  of  the  debtor,  either  in  money  or  by  a 
note,  accepted  by  the  creditor  in  full  satisfaction  and  discharge  of 
the  debt,  is  an  exception  to  the  rule,  and  extinguishes  the  debt. 
Brooks  V.  "White,  2  Met.  283.  The  assignee  of  the  defendant's  firm 
received  their  property  for  the  express  purpose  and  on  the  express 
consideration  of  obtaining  a  discharge  of  their  indebtedness  by  the 
payment  of  forty-five  per  centum  of  the  same ;  and  when  the  plaintiff 
accepted  from  the  assignee  that  sum  in  full  satisfaction,  his  demand 
against  the  defendant  was  extinguished.  His  debt  being  satisfied 
and  extinguished,  there  was  no  consideration  for  the  note  in  suit. 
It  is  not  the  case  of  a  debt  discharged  by  v^e  order  of  a  court  in 
bankruptcy  proceedings.  In  a  case  of  that  kind  a  new  promise  to 
pay  the  debt,  made  after  discharge,  revives  the  debt  which  is  not  ex- 
tinguished by  the  discharge,  and  the  consideration  for  the  original 
demand  is  a  good  consideration  for  a  new  promise.  Bank  v.  Wood, 
59  N.  H.  407 ;  Wiggin  v.  Hodgdon,  68  N.  H.  39. 

The  assignment  of  the  plaintiff's  demand  to  the  assignee  was  in 
writing,  under  seal ;  and  if,  as  the  plaintiff  claims,  this  was  only 
formal  and  intended  as  a  receipt  to  the  defendant  and  a  voucher  for 
the  assignee,  it  was  certainly  a  valid  as  well  as  formal  transfer  of 
the  claim,  with  all  rights  of  action  upon  it,  to  the  assignee.  The 
plaintiff,  having  parted  with  all  interest  in  the  claim  and  all  right 
of  action  upon  it,  nothing  remained  to  him  which  could  be  treated 
as  a  consideration  for  the  note  in  suit,  and  there  can  be  no  recovery 
upon  it. 

Judgment  for  the  defendant. 

Carpenter,  J.,  did  not  sit:  the  others  concurred.^ 

1  Ex  parte  Hall,  1  Deacon,  171  ;  Samnel  v.  Fairgrieve,  21  Ont.  App.  418;  Ra»- 
massen  v.  State  Bank,  1 1  Col.  301  ;  Lewis  v.  Simons,  1  Handy,  82  ;  Callahan  v. 
Ackley,  9  Phila.  99,  ace.  Similarly  in  case  of  a  voluntary  release  or  accord  and 
satisfaction.  Warren  v.  Whir-iey,  24  Me.  .'361  ;  Phelps  v.  Dennett,  57  Me.  491  ;  Inger- 
soU  V.  Martin,  58  Md.  67  ;  Hall  v.  Rice,  124  Mass.  292 ;  Mason  v.  Campbell,  27  Minn. 
54;  Zoebisch  v.  Von  Midden,  47  Hun,  213  (see  s.  c.  120  N.  Y.  406) ;  Snevily  v.  Read, 
9  Watts,  396;  ShepaKi  v.  Rhodes,  7  R.  I.  470;  Evans  v.  Bell,  15  Lea,  569.  Bnt 
see  Jamison  v.  Ln^low,  3  La.  Ann.  492;  Willing  i;.  Peters,  12  S.  &  R.  Ill,  contra. 
Compare  Re  M«rriman,  44  Conn.  587;  Higgins  v.  Dale,  28  Minn.  126. 


SECT,   n.]  BAENES   V.   HEDLEY.  325 

BARNES,  DowDiNG,  and  Baktley,  v.  HEDLEY  and 
Conway. 

In  the  Common  Pleas,  November  24,  1809. 

[Reported  in  2  Taunton,  184.] 

This  was  an  issue  between  the  plaintiffs,  who  were  the  executors  of 
VVilliam  Webb,  deceased,  and  the  defendants,  who  were  assignees  under 
a  commission  of  bankrapt  which  issued  against  William  Harre  and  Henry 
Suthmier,  directed  b}'  order  of  the  Lord  Chancellor,  in  order  to  try 
whether  the  bankrupts  on  the  13th  of  August,  1802,  were  indebted  to 
Webb  in  an}'  and  what  sura  of  money.  The  trial  came  on  at  the  Sittings 
in  London,  Mich.  Terra,  1808,  before  Mansfield,  C.  J.,  when  a  verdict 
was  found  for  the  plaintitfs  for  the  sum  of  11,672Z.  4s.  2d.  subject  to 
the  opinion  of  the  Court  on  the  following  case  :  By  a  written  agieement 
made  on  the  loth  of  May,  1800,  between  Webb  and  the  bankrupts,  the 
former  agreed  to  advance  money  from  time  to  time  upon  interest  at  5 
per  cent,  to  Harre  and  Suthmier,  who  carried  on  the  business  of  sugar 
bakers  in  copartnership,  in  order  to  enable  them  to  purchase  raw  sugars  ; 
and  in  consideration  of  such  advances  the  bankrupts  were  also  to  pa}'  to 
Webb  a  commission  of  5  per  cent,  for  all  sugars  which  were  to  be 
bought  of  him,  or  provided  for  Messrs.  Harre  and  Suthmier ;  and  in 
order  to  secure  to  Webb  the  balance  which  might  become  due  to  him  on 
these  transactions,  Harre  and  Suthmier  executed  and  gave  to  him  cer- 
tain deeds  and  securities.  Webb  made  out  four  several  successive  half- 
yearly  accounts  between  htm  and  Harre  and  Suthmier,  on  the  footing 
of  this  agreement,  and  various  sums  of  money  were  paid  to  Webb  on 
these  accounts  from  time  to  time  bj'  the  bankrupts  ;  tliese  accounts 
closed  on  the  10th  of  August,  1802,  when  a  considerable  balance  was 
due  from  the  bankrupts  to  Webb.  These  accounts  comprised  the  prin- 
cipal moneys  actually  advanced,  and  interest  at  5  per  cent.  ;  and  also  5 
per  cent,  on  all  sugars  purchased  by  the  bankrupts.  Webb  never  pur- 
chased or  procured  any  sugars  for  the  banki'upts  ;  but  the  same  were 
always  purchased  by  the  bankrupts  themselves  in  their  own  names.  It 
was  admitted  on  the  trial  that  the  original  agreement  of  the  loth  of  May, 
1800,  was  illegal  and  usurious,  and  that  no  part  of  the  balance  could 
have  been  recovered  by  Webb  from  Harre  and  Suthmier,  if  they  had  set 
up  the  usury ;  and  Webb  was  informed  by  the  attorney  of  Harre  and 
Suthmier  in  July,  1802,  that  these  transactions  were  usurious,  and  tha 
his  whole  debt  was  in  danger  of  being  lost,  and  a  writ  of  latitat  was 
actually  sued  out  by  the  bankrupts'  attorney  upon  the  Statute  of  Usury  ; 
but  this  fact  was  unknown  to  Webb.  In  consequence  of  this  intimation, 
it  was  agreed  between  Harre  and  Suthmier  and  AVebb,  that  Webb 
should  make  out  fresh  accounts,  leaving  out  all  the  charges  for  commis- 
sion ;  and  should  only  charge  them  with  the  principal  money,  together 
with  legal  interest ;  and  that  the  original  deeds  and  articles  in  the  pos- 
session of  Webb  should  be  given  up  bj'  hun  and  ca'Acelled  accordingly, 
Webb  accordingly  made  out  such  fresh  account,  in  Y:hich  he  omitted 


'S2(5  LEE   V.   MUGGERIDGE.  [CHAI\    i. 

llu'  whole  charge  for  coniiuission  ;  ami  the  balance  due  to  him  amounted 
to  the  sum  of  11,672/.  4s.  '2d.,  which  balance  was  composed  of  principal 
money's  actuall}-  advanced  under  the  agreement  of  15th  May,  1800,  and 
of  interest  at  5  per  cent,  fairly  and  legally  calculated  ;  the  whole  com- 
mission and  every  objectionable  charge  being  omitted.  This  account, 
so  corrected,  was,  on  the  12th  of  August,  1802,  delivered  to  the  agent 
of  Harre  and  Suthmier,  and  on  the  following  dixy  they  acknowledged 
this  balance  to  be  due  to  Webb,  and  promised  to  pay  the  same  ;  where- 
upon the  deeds  and  securities  executed  to  Webb  by  Harre  and  Suthmier, 
when  the  original  agreement  was  entered  into,  were  produced  by  Webb 
or  his  agent,  in  the  presence  of  Harre  and  Suthmier,  and  were  then 
cancelled  and  burnt.  The  question  for  the  opinion  of  the  Coui't  was, 
whether,  under  the  circumstances  of  this  case,  the  plaintiffs  were  entitled 
to  recover  the  above  balance  of  11,672/.  4s.  2c?.  Kthe  Court  should  be 
of  that  opinion,  a  verdict  for  such  sum  was  to  be  entered  for  the  plain- 
tiffs ;  if  otherwise,  the  verdict  to  be  entered  for  the  defendants. 

This  cause  was  twice  argued:  first,  in  Easter  Term,  1809,  b}'  Best, 
Serjt.,  for  the  plaintitfs,  and  Vaughan,  Serjt.,  for  the  defendants;  and 
again  in  Trinity  Term,  1809,  b}'  Shepherd.  Serjt.,  for  the  plaintiffs,  and 
Lens,  Serjt.,  for  the  defendants. 

In  the  course  of  the  present  Term  the  judges  of  the  court  sent  to  the 
Lord  Chancellor  the  following  certificate  of  their  opinion  :  — 

"This  case  has  been  argued  before  us  b}'  counsel,  and  we  are  of 
opinion  that  under  the  circumstances  the  plaintiffs  are  entitled  to 
recover  the  above  balance  of  11,672/.  4s.  6c?."  ^ 


LEE  V.    MUGGERIDGE   akd  Another,  Executors  of  Mart 
MuGGERiDGE,  deceased. 

In  the  Common  Pleas,  Trinity  Term,  June  29,  1813. 

[Bepwted  in  6  Taunton,  36.] 

This  was  an  action  of  assumpsit,  brought  under  the  following  cu- 
cumstances:  In  1799,  Joseph  Hiller,  tbe  son  of  Mrs.  Muggeridge,  the 
defendants'  testatrix,  by  a  former  husband,  falling  into  embarrassed 
circumstances,  she,  in  order  to  induce  the  plaintiff-,  his  father-in-law,  to 
relieve  him,  proposed  by  letter  to  become  security  to  the  extent  of  2000/. 
by  a  bond  payable  at 'her  death.  Tlie  plaintiff"  accordingly  advanced 
the  money  to  Joseph  Hiller ;  and  Mrs.  Muggeridge  by  her  bond,  dated 
the  4th  of  August,  1799,  became  bound  to  the  plaintiff"  in  the  penal  siun 
of  4000/.,  with  condition  that  the  heirs,  executors,  or  administrators 
of  Mrs.  Muggeridge  should,  within  six  months  after  her  decease,  pay  to 

1  Flight  V.  Reed,  1  H.  &  C  703 ;  Garvin  v.  Linton,  62  Ark.  370 ;  Kilbourn  i;.  Brad- 
Ipv  •?  dIv  356  •  Early  v.  Mahon,  19  Johns.  147 ;  Hammond  v.  Hoppmg,  13  Wend. 
S'  Sheidon  ..HaxtuP,  91  N.  Y.  124.  ace.  See  also  Tucker  ..  West,  29  Ark.  386; 
Gwinn  V.  Simes,  Gl  Mo.  335  ;  Melchoir  v.  McCarty,  31  Wis.  252. 


SECT.    IL]  lee   V.   MUGGERIDGE.  327 

the  plaintiff  1999Z.  19s.,  with  such  part  of  the  interest  as  Joseph  Hillei 
should  omit  to  pay  ;  it  being  agreed  that  he  should  pay  the  interest 
half  yearly.  Joseph  Hiller  having  neglected  to  pay  the  interest,  the 
plaintiff  in  the  year  1804  wrote  to  Mrs.  Muggeridge,  requesting  pay- 
ment of  the  arrears  ;  to  which  she,  after  her  husband's  death,  returned 
an  answer  by  letter,  stating  "that  it  was  not  in  her  power  to  pay  the 
bond  off,  her  time  here  was  but  short,  and  that  would  be  settled  by  her 
executors." 

It  appeared  that  Mrs.  Muggeridge  had  a  considerable  separate  estate 
when  the  bond  was  given,  which  she  acquired  from  the  father  of  Joseph 
Hiller,  and  the  bulk  of  which  she  gave  by  her  will  to  the  defendant, 
Nathaniel  Muggeridge.  After  an  ineflectuaj_^ttempt  to  establisli  tluiX- 
the  bond  const^[tuted  an  equitable  lien  or  chai;ge  upon_the  separate  estate 
of  Mrs.3Iuggeridge  (see  1  V.  &  B.  118),  the  plaintiff  brought  the  pres- 
ent action^  founded  u|)(i!i  tlie  jiiuniiso  euntaiiu'tl  in  the  letter  al)ove  re- 
ferred to.  The  declariition  stated  (i/iter  alia)  that  the  testatrix,  after 
the  death  of  her  husband,  and  whilst  she  was  sole,  to  wit,  on  the  11th 
of  July.  1801:,  '•  in  consideration  of  the  premises  undertook  to  the 
plaintiff  tliat  the  bond,  that  is  to  sa}',  the  principal  money  and  interest 
secured  by  the  bond,  should  be  settled,  that  is  to  say,  paid,  by  her 
executors."  The  defendants  pleaded  the  general  issue  ;  and  upon  the 
trial  of  the  cause  at  the  Sittings  after  Hilary  Term,  1813,  at  Guildhall, 
before  Gibbs,  J.,  the  jury  found  a  verdict  for  the  plaintiff.^ 

Shepherd,  Serjt.,  in  Easter  Term  last,  moved  in  arrest  of  judgment. 
on  the  ground  that  no  sufficient  consideration  was  shewn  for  the  promise 
of  the  deceased.     The  Court  granted  a  rule  nisi. 

Lens  and  Best,  Sei'jts.,  in  this  term  shewed  cause. 

iShepherd  and  Vaughan,  Serjts.,  contra. 

Mansfield,  C.  J.  The  counsel  for  the  plaintiffs  need  not  trouble 
themselves  to  reply  to  these  cases  :  it  has  been  long  establishedv-that^ 
where  a  person  is  boundmorally  and_i:xuiacientiouslY^^  p^^y  ^  debt^ 
thougti  not  iegaliy  Dound,  a_subsequent  _prfliaise  to  pay  will  give  a^ 
rjgHrg^^^o^iQS,' — 'The'onl}'  question  therefore  is.  Whether  upon  this 
declaration  there  appears  a  good  moral  obligation  !  Now  I  cannot 
conceive  that  there  can  be  a  stronger  moral  obligation  than  is  stated 
upon  this  record.  Here  is  this  debt  of  2,000Z.  created  at  the  desire  of 
the  testatrix,  lent  in  fact  to  her,  though  paid  to  Hiller.  After  her 
husband's  death,  she,  knowing  that  this  bond  had  been  given,  that  her 
son-in-law  had  received  the  money,  and  had  not  repaid  it,  knowing  all 
this,  she  promises  that  her  executors  shall  pay;  if,  then,  it  has  been 
repeatedh'  decided  that  a  moral  consideration  is  a  good  consideration 
for  a  promise  to  pay,  this  declaration  is  clearly  good.  This  case  is  not 
distinguishable  in  principle  from  Barnes  v.  Hedle}- ;  there,  not  only  the 
securities  were  void,  but  the  contract  was  void ;   but  the  money  had 

1  In  the  original  report  the  declaration  is  set  forth  with  mnch  fulness  ;  bat  as  it  is 
exceedingly  prolix,  and  most  of  it  is  wholly  irrelevant  to  the  one  question  argued  and 
decided  in  the  case,  it  is  here  omitted,  and  a  statement  of  the  material  facts  is  substi- 
tuted in  its  place.  Some  of  the  facts  stated  have  been  obtained  from  the  report  in 
1  V.  &  B.  118. 


328  LEE   V.   MUGGERIDGE.  [CHAP.  I. 

been  lent,  and,  therefore,  when  the  parties  had  stripped  the  transaction 
of  its  usury,  and  reduced  the  debt  to  mere  principal  and  interest,  the 
promise  made  to  paj'  that  debt  was  binding.  Lord  Mansfield's  judg- 
ment in  the  case  of  Doe  on  the  demise  of  Carter  r.  Straphan  is  ex- 
tremely applicable.  Here,  in  like  manner,  the  wife  would  have  been 
grossly  dishonest,  if  she  had  scrui)led  to  give  a  securitj*  for  the  money 
advanced  at  her  request.  As  to  the  cases  cited  of  Lloyd  v.  Lee  and 
Barber  v.  Fox,  there  was  no  forbearance,  and  those  cases  proceeded 
on  the  ground  that  no  good  cause  of  action  was  shown  on  the  pleadings. 

Heath,  J.  I  am  of  the  same  opinion.  Promises  without  consider- 
ation are  not  enforced,  because  the}'  are  gratuitous,  and  the  law  leaves 
the  performance  to  the  liberality  of  the  makers.  The  notion  that  a 
promise  may  be  supported  b}'  a  moral  obligation  is  not  modern  ;  in 
Charles  the  Second's  time  it  was  said,  if  there  be  an  iota  of  equit}',  it  is 
enough  consideration  for  the  promise. 

Chambrk,  J.  There  cannot  be  a  stronger  or  clearer  case  of  moral 
obligation  than  this.  The  gentleman  has  done  this  ladj'  a  great  favor, 
in  going  to  this  expense,  and  accepting  an  invalid  security  ;  and  when 
she  could  give  a  better  security,  it  became  her  duty  so  to  do,  and  she 
has  done  it.  In  the  cases  cited  it  was  the  plaintiff's  fault  if,  having  it 
in  his  power  to  state  a  good  consideration  on  the  record,  he  neglected 
so  to  do. 

GiBBS,  J.  T  agree  in  this  case  the  plaintiff  is  entitled  to  recover. 
It  cannot,  I  think,  be  disputed  now,  that  wherever  there  is  a  moral 
obligation  to  pay  a  debt,  or  perform  a  duty,  a  promise  to  perform  that 
duty,  or  pay  that  debt,  will  be  supported  b}'  the  previous  moral  obliga- 
tion. There  cannot  be  a  stronger  case  than  this  of  moral  obhgation. 
The  counsel  for  the  defendant  did  not  dare  to  grapple  with  this  posi- 
tion, but  endeavored  to  show  that  there  was  no  case  in  which  a  subse- 
quent promise  had  been  supported,  where  there  had  not  been  an 
antecedent  legal  obligation  at  some  time  or  other ;  from  whence  he 
wished  it  to  be  inferred  that,  unless  there  had  been  the  antecedent 
legal  obligation,  the  mere  moral  obligation  would  not  be  a  sufficient 
consideration  to  support  the  promise.  But  in  Barnes  v.  Hedle}'  cer- 
tainly Hedley  never  was  for  a  moment  legally  bound  to  pa}'  a  farthing 
of  that  money  for  which  he  was  sued ;  for  it  appears  to  have  )ieen 
advanced  upon  a  |)reviously  existing  usurious  contract ;  and  whatever 
was  advanced  upon  such  a  contract,  certainly  could  not  be  recovered 
at  an}'  one  moment.  The  borrower,  availing  himself  of  the  law  so  far 
as  he  honestly  might,  and  no  further,  reducing  it  to  mere  principal  and 
interest,  does  that  which  every  honest  man  ought  to  do  in  like  circum- 
stances, promises  to  pay  it,  and  that  promise  was  held  binding  As  to 
the  cases  of  Lloyd  v.  Lee  and  Barber  v.  Fox,  they  have  suAIciently 
been  answered  by  my  Lord  and  my  brother  Chambre  ;  that  if  a  man 
will  state  on  his  declaration  a  consideration  which  is  no  consideration, 
and  shows  no  other  consideration  on  his  declaration,  although  another 
good  consideration  may  exist,  when  that  which  he  does  show  fails,  he 
cannot  succeed  upon  the  proof  of  the  other  which  he  has  not  alleged. 
Now  in  the  first  of  those  cases  there  was  clearly  no  forbearance,  because 


SECT.    II.]  BINNINGTON   V.    WALLIS.  329 

forbearance  must  be  a  deferring  to  prosecute  a  legal  right ;  but  no  le^i.vl 
right  to  recover  previously  existed.  Whatever  other  consideration 
might  exist  for  the  promise,  it  was  not  stated  in  the  declaration  ;  it  is, 
therefore,  clear  that  this  rule  must  be  discharged,  upon  the  ground  that 
wherever  there  is  an  antecedent  moral  obligation,  and  a  subsequent 
promise  given  to  perform  it,  it  is  of  sufficient  validity  for  the  plaintifT 
to  be  able  to  enforce  it.  Rule  discharqed ' 


\ 


BINNINGTON  v.   WALLIS. 
In  the  King's  Bench,  June  29,  1821. 

[Reported  in  4  Barttewall  Sf  Alderson,  650.] 

Declaration  stated  that,  before  the  making  of  the  promise  and 
undertaking,  the  plaintiff  had  cohabited  with  the  defendant  as  his  mis- 
tress, and  an  immoral  connection  and  intercourse  had  existed  between 
them  for  a  long  space  of  time,  to  wit,  for  the  space  of  twelve  years ; 
and  the  plaintiff  had  thereby  been  greatly'  injured  in  her  character  and 
reputation,  and  deprived  of  the  means  of  honestly  procuring  a  liveli- 
hood ;  and  that,  before  the  time  of  the  making  of  the  promise,  to  wit, 
on  the  1st  of  Januaiy,  1816,  at,  &c.,  the  plaintiff  wholly  ceased  to 
cohabit  with  the  said  defendant  as  his  mistress,  and  to  have  an}' 
immoral  intercourse  with  him ;  and  thereupon  it  was  determined  and 
agreed  between  them  that  no  immoral  intercourse  or  connection  should 
ever  again  take  place  between  them ;  and  that  the  defendant,  as  a 
compensation  for  the  injury  so  sustained  by  the  plaintiff,  should  pay 
and  allow  to  the  plaintiff  the  quarterly  sum  of  10/.,  while  she  should  be 
and  continue  of  good  and  virtuous  life,  conversation,  and  demeanor; 
and  thereupon,  in  consideration  of  the  premises,  and  that  the  plaintiff 
at  the  request  of  the  defendant  would  resign  and  give  up  the  said 
quarterly  sum,  he  undertook  to  pa}-  her  so  much  money  as  the  said 
quarterly  sum  was  reasonably  worth,  in  order  to  enable  her  to  con- 
tinue to  live  in  a  virtuous  and  decorous  manner.  The  declaration  then 
averred  that  the  plaintiff  did  resign  and  give  up  the  said  quarterl}' 
sum,  and  the  same  from  thence  wholly  ceased  and  determined ;  and 

1  Lafitte  v.  Selogny,  33  La.  Ann.  6,59;  Brownson  v.  Weeks,  47  La.  Ann.  1042; 
Wilson  V.  Burr,  2.5  Wend.  386 ;  Goulding  v.  Davidson,  26  N.  Y.  604  ;  Hemphill  v. 
McClimans,  24  Pa.  367  ;  Leonard  v.  Duffin,  94  Pa.  218  ;  Brooks  v.  Merchants'  Bank, 
125  Pa.  394  ;  Holden  v.  Banes,  140  Pa.  63,  ace. ;  Dixie  v.  Worthy,  11  U.  C.  Q.  B.328; 
Watson  V.  Duulap,  2  Cranch  C.  C.  14;  Ezell  v.  King,  93  Ala.  470;  Thompson  v. 
Hudgins,  116  Ala.  93  ;  Waters  v.  Bean,  1.5  Ga.  358  ;  Maher  v.  Martin,  43  Ind.  314  ; 
Putnam  v.  Tennyson,  50  Ind.  456  ;  Long  v.  Brown,  66  Ind.  160;  Austin  v.  Davis,  128 
Ind.  472;  Holloway's  Assignee  v.  Rudy,  60  S.  W.  Rep.  650  (Ky.) ;  Porterfield  v. 
Butler,  47  Miss.  165 ;  Musick  v.  Dodson,  76  Mo.  624  ;  Bragg  v.  Israel,  86  Mo.  App. 
338;  Kent  v.  Raud,  64  N.  H.  45  ;  Condon  v.  Barr,  49  N.  J.  L.  53;  Long  t;.  Rankin, 
108  N.  C.  333  ;  Wilcox  r.  Arnold,  1 16  N.  C.  708  ;  Hay  ward  v.  Barker,  52  Vt.  429 ;  Val- 
entine V.  Bell,  66  Vt.  280,  contra.     See  also  Parker  i;.  Cowan,  1  Heisk.  518. 


330  LITTLEFIELD   V.   SHEB.  [CHAP.  I. 

that  she  had  alwaj's,  from  the  time  of  the  cessation  of  the  immoral 
connection,  lived  in  a  virtuous  and  decorous  manner,  and  been  of  vir- 
tuous life,  conversation,  and  demeanor.  It  then  averred  that  the 
quarterly  sum  was  reasonabl}-  worth  ^OQl.  ;  and  then  alleged  as  a 
breach  non-payment  b}'  the  defendant-  The  other  counts  omitted 
any  mention  of  the  quarterly  allowance,  and  in  other  respects  were 
similar  to  this.     To  this  declaration  there  was  a  general  demurrer. 

Parke^  in  support  of  the  demurrer. 

Holt^  contra. 

Per  Curiam.  The  declaration  is  insufficient.  It  is  not  averred 
that  the  defendant  was  the  seducer,  and  there  is  no  authorit}'  to  show 
that  past  cohabitation  alone,  or  the  ceasing  to  cohabit  in  future,  is  a 
good  consideration  for  a  promise  of  this  nature.  The  cases  cited  ^  are 
distinguishable  from  this,  because  they  are  all  cases  of  deeds;  and  it  is 
a  ver}'  different  question  whether  a  consideration  be  sufficiently  good  to 
sustain  a  promise,  and  whether  it  be  so  illegal  as  to  make  the  deed 
which  required  no  consideration  void.  There  must  therefore  be  judg- 
ment for  the  defendant.  Judgment  for  defendant.''- 


V  LITTLEFIELD,  Executrix  of  John  Littlefield  t>. 
ELIZABETH  SHEE. 

In  the  King's  Bench,  November  4,  1831, 

[Reported  in  2  Bamewall  ^  Adolphua,  811.] 

Assumpsit  for  goods  sold  and  delivered.  The  fourth  count  stated 
that  John  Littlefield  in  his  lifetime,  at  the  special  instance  and  request 
of  the  defendant,  had  supplied  and  delivered  to  her  divers  goods  and 
chattels  for  the  sum  of  16/.  ;  and  thereupon,  in  consideration  of  the 
premises,  and  of  the  said  sum  of  mone}-  being  due  and  unpaid,  the 
defendant,  after  the  death  of  the  said  John  Littlefield,  undertook  and 
promised  the  plaintiff  as  executrix  of  J.  L.  to  pay  her  the  said  sum  of 
money  as  soon  as  it  was  in  her  (the  defendant's)  power  so  to  do.  And 
although  afterwards,  to  wit,  on,  &c.,  at,  &c.,  it  was  in  her  power  to  pay 
the  said  sum,  yet  she  did  not  do  so.  Plea  :  the  general  issue.  At  the 
trial  before  Gaselee,  J.,  at  the  last  Assizes  for  Sussex,  it  appeared  that 
the  action  was  brought  to  recover  151.  for  butcher's  meat  supplied  bj'the 
testator  to  the  defendant,  for  her  own  use,  between  September,  1825, 

1  Annandale  v.  Harris,  2  Peere  W.  433 ;  Turner  v.  Vaughan,  2  Wils.  339.  See 
also  Nye  v.  Moseley,  6  B.  &  C.  133 ;  Massey  v.  Wallace,  32  S.  C.  149. 

2  In  Beaumont  v.  Reeve,  8  Q.  B.  483,  it  was  held  that  even  though  the  defendant 
was  the  seducer,  a  subsequent  promise  was  not  binding.  Wallace  v.  Rappleye,  103  111. 
229,  250,  ace.  See  also  Wiggins  v.  Keizer,  6  lud.  252.  Shenk  v.  Mingle,  13  Serg.  & 
R.  29,  contra.  See  also  Jennings  v.  Brown,  9  M.  &  W.  496 ;  Wyant  v.  Lesher,  23  Pa. 
338. 


SECT.   II.]  LITTLEFIELD   V.    SHEE.  331 

and  March,  1826.  During  that  time  the  defendant  was  a  marriea 
woman,  but  her  husband  was  abroad.  After  his  death  she  promised  to 
pay  the  debt  when  it  should  be  in  her  power,  and  her  abilit}-  to  pay 
was  proved  at  the  trial.  The  learned  judge  held  that,  the  defendant 
having  been  a  feme  covert  at  the  time  when  the  goods  were  supplied, 
her  husband  was  originall}'  liable,  and  consequentl}'  there  was  no  eoci- 
sideration  for  the  promise  declared  upon.  The  plaintiif  was  therefore 
nonsuited.  IIutckinso7i,  on  a  former  day  in  this  Term,  moved  to  set 
aside  the  nonsuit,  and  to  enter  a  verdict  for  the  plaintiif  on  the  fourth 
count;  on  the  gi'ound  that,  the  goods  having  been  supplied  to  the 
defendant  while  she  was  living  separate  from  her  husband,  she  was 
under  a  moral  obligation  to  pay  for  them,  and  such  obligation  was  a 
Bufficient  consideration  for  a  subsequent  promise.  It  was  not  necessary 
that  there  should  have  been  an  antecedent  legal  obligation.  Barnes  v. 
Hedle}",  Lee  v.  Muggeridge.  Cur.  adv.  vult. 

Lord  Tenterden,  C.  J.,  now  delivered  the  judgment  of  the  Court. 
The  fourth  count  of  the  declaration  states  that  the  testator  had  at  the 
request  of  the  defendant  suppUed  her  with  goods,  and  that  in  consid- 
eration of  the  premises,  and  of  the  price  of  the  goods  being  due  and 
unpaid,  the  defendant  promised.  Now,  that  is  in  substance  an  allega- 
tion that  those  sums  were  due  from  her,  and  the  plaintiff  failed  in  proof 
of  that  allegation,  because  it  appeared  that  the  goods  were  supplied  tc 
her  whilst  her  husband  was  hving,  so  that  the  price  constituted  a  debt 
due  from  him.  We  are  therefore  of  opinion  that  the  declaration  was 
not  supported  by  the  proof,  and  that  the  nonsuit  was  right.  In  Lee  ». 
Muggeridge  all  the  circuuistant-es  which  sliowed  that  the  money  was  in 
conscience  due  from  the  defendant  were  correctl}'  set  forth  in  the  declar- 
ation. It  there  appeared  upon  the  record  that  the  money  was  lent  to 
her,  though  paid  to  her  son-in-law,  while  she  was  a  married  woman ; 
and  that  after  her  husband's  death,  she,  knowing  all  the  circumstances, 
promised  that  her  executor  should  pay  the  sum  due  on  the  bond.  I 
must  also  observe  that  the  doctrine  that  a  moral  obligation  is  a  suffi- 
cient consideration  for  a  subsequent  promise  is  one  which  should  be 
received  with  some  limitation.  liule  refused.^ 

1  Meyer  v.  Haworth,  8  A.  &  E.  467,  presented  similar  facts  except  that  the  defend- 
ant was  living  in  open  adultery  (which  exempted  her  husband  from  liability  for  her 
necessary  expenses)  and  the  plaintiff  was  ignorant  when  he  furnished  the  goods  of 
both  the  defendant's  marriage  and  her  adultery.  The  court  held  the  plaiutJE  could 
not  recover. 


V 

332  *jj     '       EASTWOOD   V.   KENYON.  [CHAP.   I. 


^  EASTWOOD   V.   KENYON 

/,  In  the  Queen's  Bench,  January  16,  1840. 

[Reported  in  11  Addphus  ^  Ellis,  438.] 

Assumpsit.  The  declaration  stated  that  one  John  Sutcliffe  made 
iiis  ■will,  and  appointed  plaintiff  executor  thereof,  and  thereby  be- 
queathed certain  property'  in  manner  therein  mentioned ;  that  he 
afterwards  died  without  altering  his  will,  leaving  one  Sarah  Sutcliffe, 
an  infant,  his  daughter  and  only  child,  and  hen-ess  at  law,  surviv- 
ing ;  that  after  making  the  will  John  SutcHffe  sold  the  property 
mentioned  therein,  and  purchased  a  piece  of  land  upon  which  he 
erected  certain  cottages,  but  the  same  were  not  completed  at  the  time 
of  his  death  ;  which  piece  of  land  and  cottages  were  at  the  time  of  his 
death  mortgaged  by  him  ;  that  he  died  intestate  in  respect  of  the 
same,  whereupon  the  equity  of  redemption  descended  to  the  said  infant 
as  heiress  at  law ;  that  after  the  death  of  John  SutcUffe,  plaintiff  duly 
proved  the  will  and  administered  to  the  estate  of  the  deceased ;  that 
from  and  after  the  death  of  John  Sutcliffe  until  the  said  Sarah  Sutcliffe 
came  of  full  age,  plaintiff  executor  as  aforesaid  "  acted  as  the  guardian 
and  agent "  of  the  said  infant,  and  in  that  capacity  expended  large 
8un)s  of  money  in  and  about  her  maintenance  and  education,  and  in 
and  about  the  completion,  management,  and  necessary  improvement  of 
the  said  cottages  and  premises  in  which  the  said  Sarah  Sutcliffe  was  so 
interested,  and  in  pajing  the  interest  of  the  mortgage  money  chargeable 
thereon,  and  otherwise  relative  thereto,  the  said  expenditure  ha\'ing 
been  made  in  a  prudent  and  useful  manner,  and  having  been  beneficial 
to  the  interest  of  the  said  Sarah  Sutchffe  to  the  full  amount  thereof; 
that  the  estate  of  John  Sutcliffe  deceased  having  been  insufficient  to 
allow  plaintiff  to  make  the  said  paj-ments  out  of  it,  plaintiff  was  obliged 
to  advance  out  of  his  own  money's,  and  did  advance,  a  large  sum,  to  wit, 
140Z.  for  the  purpose  of  the  said  expenditure  ;  and,  in  order  to  reim- 
burse himself,  was  obliged  to  boiTow,  and  did  borrow,  the  said  sum  of 
one  A.  Blackburn,  and  as  security  made  his  promissory'  note  for  pay- 
ment thereof  to  the  said  A.  Blackburn  or  his  order  on  demand  with 
interest;  which  sum,  so  secured  by  the  said  promissory  note,  was  at 
the  time  of  the  making  thereof  and  still  is  whoUj'  due  and  unpaid  to 
the  said  A.  Blackburn ;  that  the  said  sum  was  expended  \>y  plaintiff  in 
manner  aforesaid  for  the  benefit  of  the  said  Sarah  Sutcliffe,  who  re- 
ceived all  the  benefit  and  advantage  thereof,  and  such  expenditure  was 
useful  and  beneficial  to  her  to  the  full  amount  thereof;  that  when  the 
said  Sarah  Sutcliffe  came  of  full  age  she  had  notice  of  the  premises, 
and  then  assented  to  the  loan  so  raised  by  plaintiff,  and  the  security  so 
given  by  him,  and  requested  plaintiff  to  give  up  to  one  J.  Stansfield,  a^s 


SECT.    II.]  EASTWOOD   V.    KENYON.  333 

her  agent,  the  control  and  management  of  the  said  property,  and  then 
promised  the  plaintiff  to  paj-  and  discharge  the  amount  of  the  said 
note  ;  and  thereupon  caused  one  year's  interest  upon  the  said  sum  of 
140/.  to  be  paid  to  A.  Blackburn.  That  thereupon  plaintiff  agreed  to 
give  up,  and  did  then  give  up,  the  control  and  management  of  the 
property  to  the  said  agent  on  behalf  of  the  said  Sarah  SutcHffe ;  that 
nil  the  services  of  plaintiff  were  done  and  given  b}-  him  for  the  said 
Sai-ah  Sutcliffe  and  for  her  benefit  gratuitously,  and  without  any  fee, 
benefit,  or  reward  whatsoever ;  and  the  said  serAaces  and  expenditures 
were  of  great  benefit  to  her,  and  her  said  property  was  increased  in 
value  by  reason  thereof  to  an  amount  far  exceeding  the  said  140/. 
That  afterwards  defendant  intermarried  with  the  said  Sarah  Sutcliffe, 
and  had  notice  of  the  premises  ;  and  the  accounts  of  plaintiff  of  and 
concerning  the  premises  were  then  submitted  to  defendant,  who 
then  examined  and  assented  to  the  same,  and  upon  such  accounting 
there  was  found  to  be  due  to  plaintiff  a  large  sum  of  money,  to  wit, 
&c. ,  for  moneys  so  expended  and  borrowed  b}'  him  as  aforesaid  ;  and  it 
also  then  appeared  that  plaintiff  was  indebted  to  A.  Blackburn  in  the 
amount  of  the  said  note.  That  defendant,  in  right  of  his  wife,  had  and 
received  all  the  benefit  and  advantage  arising  from  the  said  services 
and  expenditure.  That  thereupon,  in  consideration  of  the  premises, 
defendant  promised  plaintiff  that  he  would  pay  and  discharge  the 
amount  of  the  said  promissor}-  note ;  but  that,  although  a  reasonable 
time  for  papng  and  discharging  the  said  note  had  elapsed,  and  A. 
Blackburn,  the  holder  thereof,  was  willing  to  accept  pajTnent  from 
defendant,  and  defendant  was  requested  b}'  plaintiff  to  pay  and  dis- 
charge the  amount  thereof,  defendant  did  not  nor  would,  then  or 
at  any  other  time,  pay  or  discharge  the  amount,  &c.,  but  wholly 
refused,  &c. 

Plea :  non  assumpsit. 

On  the  trial  before  Patteson,  J.,  at  the  York  Spring  Assizes,  1838,  it 
was  objected  on  the  part  of  the  defendant  that  the  promise  stated  in 
the  declaration,  and  proved,  was  a  promise  to  pay  the  debt  of  another, 
within  the  Statute  of  Frauds,  29  Car.  2,  c.  3,  s.  4,  and  ought  to  have 
been  in  writing  ;  on  the  other  hand,  it  was  contended  that  such  defence, 
if  available  at  all,  was  not  admissible  under  the  plea  of  non  assumpsit} 
The  learned  judge  was  of  the  latter  opinion,  and  the  plaintiff  had  a 
verdict,  subject  to  a  motion  to  enter  a  verdict  for  the  defendant. 

Cresswell,  in  tlie  following  Tenn,  obtained  a  rule  nisi  according  to 
the  leave  reserved,  and  also  for  arresting  judgment  on  the  ground  that 
the  declaration  shewed  no  consideration  for  the  promise  alleged.  In 
Trinity  Vacation,  1839, 

Alexander  and  W.  If.  Watson  shewed  cause.  ...  It  has  been  dis- 
tinctly held  that  a  moral  obligation  will  support  an  express  promise. 
There  must  be  something  done  by  the  plaintiff  at  the  defendant's 
request,  or  an  act  done  for  the  defendant's  benefit  must  be  ratified  by 

1  The  arguments  and  decision  upon  these  points  arc  omitted. 


334  EASTWOOD   V.    KENTON.  [CHAP.    I. 

an  express  promise  to  pay :  in  either  case  an  action  will  lie.  [Cole- 
ridge, J.  How  are  we  to  know  the  difference  between  an  express 
promise  and  an  implied  promise  on  the  pleadings  ?]  After  verdict  an 
express  promise  must  be  presumed.  [Coleridge,  J.  The  same  ques- 
tion ma\-  arise  on  demurrer.]  In  Lee  v.  Muggeridge  executors  were 
held  liable  on  a  promise  b}'  the  testatrix,  after  the  decease  of  her  hus- 
band, to  pay  a  bond  made  by  her  when  under  coverture,  on  the  express 
ground  that  she  was  morally  bound  to  pay  it.  The  same  doctrine  was 
upheld  in  Seago  v.  Deane,^  Atkins  v.  Hill,  and  in  several  other  cases 
cited  in  the  note  to  Wennall  v.  Adney."^  A  stronger  case  of  moral 
obUgation  can  hardly  arise  than  the  present,  where  the  plaintiff  is 
admitted  to  have  been  for  many  3'ears  the  faithful  guardian  and  man- 
ager of  the  estate  of  the  defendant  while  she  was  under  age,  and 
where  the  defendant  and  his  wife  have  received  great  pecuniary  benefit 
from  the  plaintiff's  acts. 

Cresswell,  contra.  .  .  .  What  is  it  that  constitutes  the  moral  obliga- 
tion here  ?  Not  the  expenditure  on  the  estate,  for  no  duty  was  cast 
on  the  plaintiff  to  lay  out  any  thing  on  it,  nor  had  he  any  right  to 
interfere  with  the  management ;  and  if  he  had,  the  defendant  had  at 
that  time  no  interest  in  it  at  all.  If  the  honesty  of  the  outlay  causes 
the  moral  obhgation,  then  it  is  indifferent  whether  it  turned  out  profit- 
able or  not  to  the  defendant  or  his  wife.  It  would  support  a  promise, 
though  the  propert}'  had  been  damnified  by  it.  If  the  benefit  consti- 
tutes the  consideration,  then  whenever  a  party  benefits  another  against 
his  will,  a  subsequent  promise  will  be  a  ground  of  action.  If  it  had 
appeared  that  the  wife  was  liable  at  the  time  of  her  marriage,  then  the 
consequent  liability  of  the  defendant  might  have  supported  his  promise  ; 
but  no  liabiUty  of  the  wife  is  stated,  nor  is  it  said  that  she  pi'omised  in 
consideration  of  the  premises.  As  to  the  agreement  of  the  plaintiff 
to  give  up  the  control  and  management  of  the  property,  he  had  no  right 
to  either,  and  therefore  nothing  to  give  up  ;  and  if  he  had,  it  is  not 
alleged  to  have  been  the  consideration  of  the  wife's  promise.  The 
doctrine  of  moral  obligation  as  a  ground  for  a  promise  must  be  limited 
to  those  cases  where  the  la,w  would  have  given  a  clear  right  of  action 
originally,  if  some  legal  impediment  had  not  suspended  or  precluded 
the  liability  of  the  party.  The  ordinary  instances  are  infancy,  bank- 
ruptcy, and  the  Statute  of  Limitations  ;  and  these  were  the  cases  re- 
ferred to  by  Lord  Mansfield  when  he  laid  down  the  above  doctrine.  As 
a  general  rule,  it  cannot  be  supported.  Littlefield  v.  Shee.  The  law  is 
correctl}'  laid  down  and  the  cases  explained  in  the  note  to  Wennall  v 
Adney." 

In  this  Term  (January  16th)  the  judgment  of  the  Court  was  deliv- 
ered by 

1  4  Eing.  459.  2  3  b.  &  P.  247. 

3  3  B.  &  P.  247.    See  also  the  argument  of  the  Attorney-General  in  Haigh  v.  Brooks, 
10  A.  &  E.  315,  316. 


SECT.   II.]  EASTWOOD   V.  KENYOK.  835 

Lord  Denman,  C.  J.  .  .  .  The  second  point  arose  in  arrest  of  judg- 
ment, namely,  whether  the  declaration  showed  a  sufficient  considera- 
tion for  the  promise.  It  stated  in  effect  that  the  plaintiff  was  executor 
under  the  will  of  the  father  of  the  defendant's  wife,  who  had  died 
intestate  as  to  his  real  estate,  lea\ing  the  defendant's  wife,  an  infant, 
his  only  child  ;  that  the  plaintiff  had  voluntarily  expended  his  money 
for  the  improvement  of  the  real  estate,  while  the  defendant's  wile  was 
sole  and  a  minor ;  and  that,  to  reimburse  himself,  he  had  borrowed 
money  of  Blackburn ,  to  whom  he  had  given  his  promissory  note  ;  that 
the  defendant's  wife,  while  sole,  had  received  the  benefit,  and  after 
she  came  of  age  assented  and  promised  to  pay  the  note,  and  did  pay  a 
year's  interest ;  that,  after  the  marriage,  the  plaintiff's  accounts  were 
shown  to  the  defendant,  who  assented  to  them,  and  it  appeared  that 
there  was  due  to  the  plaintiff  a  sima  equal  to  the  amount  of  the  note 
to  Blackburn  ;  that  the  defendant,  in  right  of  his  wife,  had  received  all 
the  benefit,  and,  in  consideration  of  the  premises,  promised  to  pay  and 
discharge  the  amount  of  the  note  to  Blackbm'u. 

Upon  motion  in  arrest  of  judgment,  this  promise  must  be  taken  to 
have  been  proved,  and  to  have  been  an  express  promise,  as  indeed  it 
must  of  necessity  have  been,  for  no  such  implied  promise  in  law  was 
ever  heard  of.  It  was  then  argued  for  the  plaintiff  that  the  declaration 
disclosed  a  suflScient  moral  consideration  to  support  the  promise. 

Most  of  the  older  cases  on  this  subject  are  collected  in  a  learned 
note   to   the   case   of  Wennall  v.  Adney,^  and   the   conclusion   there 

1  3  B.  &  P.  249.  [The  note  referred  to,  which  was  first  published  in  1804,  is  as 
follows  :  — 

"  An  idea  has  prevailed  of  late  years  that  an  express  promise,  founded  simply  on 
an  antecedent  moral  obligation,  is  sufficient  to  support  an  assimipsit.  It  may  be 
worth  consideration,  however,  whether  this  proposition  be  not  rather  inaccurate,  and 
whether  that  inaccuracy  has  not  in  a  great  measure  arisen  from  some  expressions  of 
Lord  Mansfield  and  Mr.  Justice  Buller,  which,  if  construed  with  the  qualifications 
fairly  belonging  to  them,  do  not  warrant  the  conclusion  which  appears  to  have  been 
rather  hastily  drawn  from  thence.  In  Atkins  v.  Hill,  Cowp.  288,  which  was  assump- 
sit against  an  executor  on  a  promise  by  him  to  pay  a  legacy  in  consideration  of 
assets,  Lord  Mansfield  said :  '  It  is  the  case  of  a  promise  made  upon  a  good  and  valu- 
able consideration,  which  in  all  cases  is  a  sufficient  ground  to  support  an  action.  It 
is  so  in  cases  of  obligations  which  would  otherwise  only  bind  a  man's  conscience,  and 
which  without  such  promise  he  could  not  be  compelled  to  pay.'  And  in  Hawkes  v. 
Saunders,  Cowp.  290,  which  was  a  similar  case  with  Atkins  v.  Hill,  Lord  Mansfield 
said  that  the  rule  laid  down  at  the  bar  '  that  to  make  a  consideration  to  support  an 
assumpsit  there  must  be  either  an  immediate  benefit  to  the  party  promising,  or  a  losa 
to  the  person  to  whom  the  promise  was  made,'  was  too  narrow,  and  observed  '  that 
a  legal  or  equitable  duty  is  a  sutficient  consideration  for  an  actual  promise ;  that 
wliere  a  man  is  imder  a  moral  obligation,  which  no  court  of  law  or  equity  can  enforce, 
and  promises,  the  honesty  and  rectitude  of  the  thing  is  a  consideration.'  His  Lord- 
?l.ip  then  instanced  the  several  cases  of  a  promise  to  pay  a  debt  barred  by  the  Statute 
of  Limitations,  a  promise  by  a  bankrupt  after  his  certificate  to  pay  an  antecedent 
debt,  and  a  promise  by  a  person  of  full  age  to  pay  a  debt  contracted  during  hig 
iiifanoy.  The  opinion  of  Mr.  Justice  Buller  in  the  last  case  was  to  the  same  efifect, 
and  the  same  law  was  again  laid  down  by  Lord  Mansfield  in  Trueman  v.  Fentoa, 
Cowp.  &44.     Of  the  two  former  cases  it  may  be  observed  that  the  particular  point 


336  EASTWOOD   V.   KENYON.  [CHAP.   L 

arrived  at  seems  to  be  correct  in  general,  "  that  an  express  promise  can 
only  revive  a  precedent  good  consideration,  which  might  have  been 

decided  in  them  has  been  overruled  by  the  subsequent  case  of  Deeks  v.  Strutt,  6  T.  R. 
690.  And  it  may  further  be  observed,  that  however  general  the  expressions  used  by 
Lord  Mansfield  may  at  first  sight  appear,  yet  the  instances  adduced  by  him  as  illus- 
trative of  the  rule  of  law  do  not  carry  that  rule  beyond  what  the  older  authorities 
seem  to  recognize  as  its  proper  limits ;  for  in  each  instance  the  party  bound  by  the 
promise  had  received  a  benefit  previous  to  the  promise.  Indeed  it  seems  that  in 
such  instances  alone  as  those  selected  by  Lord  Mansfield  will  an  express  promise 
have  any  operation,  and  there  it  only  becomes  necessary  because,  though  the  consid- 
eration was  originally  beneficial  to  the  party  promising,  yet,  inasmuch  as  he  was  not 
of  a  capacity  to  bind  himself  when  he  received  the  benefit,  or  is  protected  from  lia- 
bility by  some  statute  provision,  or  some  stubborn  rule  of  law,  the  law  will  not,  ai 
in  ordinary  cases,  imply  an  assumpsit  against  him.  The  same  observation  is  appli- 
cable to  Trueman  v.  Fenton,  that  being  an  action  against  a  bankrupt  on  a  promise 
made  by  him  subsequent  to  his  certificate  respecting  a  debt  due  before  the  certificate. 
There  is  however,  rather  a  loose  note  of  a  case  of  Scott  v.  Nelson,  Westminster  Sit^ 
tings,  4  Geo.  3,  cor.  Ld.  Mansfield  (see  Esp.  N.  P.  945),  in  which  his  Lordship  is  said 
to  have  held  a  father  bound  by  his  ])roinise  to  pay  for  the  previous  maintenance  of 
a  bastard  child.  And  there  is  also  an  anonymous  case,  2  Show.  184,  where  Lord 
C.  J.  Peinberton  ruled  that  '  for  meat  and  drink  for  a  bastard  child  an  indebitatus 
assumpsit  will  lie.'  Although  the  latter  case  does  not  expressly  say  tiiat  tliere  was 
a  previous  request  by  the  defendant,  yet  that  seems  to  have  been  the  fact,  for  Lord 
Hale's  opinion  is  cited  to  show  '  that  where  there  is  common  charity  and  a  charge,' 
the  action  will  lie ;  which  seems  to  imply  that  if  a  charge  be  imposed  upon  one 
person  by  the  charitable  conduct  of  another,  the  latter  shall  pay ;  and  though  he 
adds,  '  and  undoubtedly  a  special  promise  would  reach  it,'  that  expression  does  not 
Qecessarily  import  a  promise  subsequent  to  the  charge  being  sustained,  but  may  be 
supposed  to  mean  that,  where  a  party  is  induced  to  undertake  a  charge  by  the  en 
fiiagement  of  another  to  pay,  the  latter  will  certainly  be  liable,  even  though  he  should 
not  be  80  where  the  charge  was  only  induced  by  his  conduct  without  such  engage- 
ment. The  case  of  Watson  v.  Turner,  Bull.  N.  P.  147,  has  sometimes  been  cited  in 
support  of  what  has  been  supposed  to  be  the  general  principle  laid  down  by  Lore 
Mansfield,  because  in  that  case  overseers  were  held  bound  by  a  mere  subsequent 
promise  to  pay  an  apothecary's  bill  for  care  taken  of  a  pauper  ;  but  it  may  be  ob- 
servevi  that  '  this  was  adjudged  not  to  be  nudum  pactum,  for  the  overseers  are  bound 
to  provide  for  the  poor ; '  which  obligation,  being  a  legal  obligation,  distinguishei 
the  case.  Indeed,  in  a  late  case  of  Atkins  i'.  Banwell,  2  East,  505,  that  distinction 
does  not  seem  to  have  been  sufficiently  adverted  to  ;  for  Watson  v.  Turner  was  cited 
to  show  that  a  mere  moral  obligation  is  sufficient  to  raise  an  implied  assumpsit,  and 
though  the  Court  denied  that  proposition,  yet  Lord  Ellenborough  observed  that  the 
promise  given  in  the  case  of  Watson  v.  Turner  made  all  the  difference  between  the 
two  cases,  without  alluding  to  another  distinction  which  might  have  been  taken  ; 
viz.,  that  though  the  parish  otHcers  were  bound  by  law  in  Watson  v.  Turner,  the 
defendants  in  the  principal  case  were  not  so  bound,  because  the  pauper  had  been 
relieved  by  the  plaintiffs  as  overseers  of  another  parish,  though  belonging  to  the 
parish  of  wiiich  the  defendants  were  overseers.  In  the  older  cases  no  mention  is 
made  of  moral  obligation;  but  it  seems  to  have  been  much  doubted  whether  mer<» 
natural  affection  was  a  sufficient  consideration  to  support  an  assumpsit,  though 
coupled  with  a  subsequent  express  promise.  Indeed  Lord  Mansfield  appears  to  have 
used  the  term  '  moral  obligation,'  not  as  expressive  of  any  vague  and  undefined  claim 
arising  from  nearness  of  relationship,  but  of  those  imperative  duties  which  would  be 
enforceable  by  law,  were  it  not  for  some  positive  rule,  which,  with  a  view  to  general 
benefit,  exempts  the  jjarty  in  that  particular  instance  from  legal  liability.  On  such 
duties,  so  exeni])ted,  an  express  promise  operates  to  revive  the  liability  and  take 
%way  thf  exemption,  because  if  it  were  not  for  the  exemption,  they  would  be  enforced 


SECT,    ir.]  EASTWOOD   V.    KENYON.  337 

enforced  at  law  through  the  medium  of  an  implied  promise,  had  it  not 
been  suspended  by  some  positive  rule  of  law  ;  but  can  give  no  original 

at  law  through  the  medium  of  an  implied  promise.  In  several  of  the  cases  it  \a  laid 
down,  that  to  support  an  assumpsit  the  party  promising  must  derive  a  benefit,  or  the 
party  performing  sustain  an  inconvenience  occasioned  by  the  defendant.  Per  Coke 
and  all  the  Justices,  Hatch  and  Capel's  Case,  Godb.  202 ;  per  Reeve,  J.,  Mar.  20.3 ; 
per  Coke,  C.  J.,  and  Dodderidge,  J.,  3  Bulst.  162 ;  and  per  Coke,  C.  J.,  1  Roll.  Rep. 
61,  pi.  4.  And  in  Lampleigh  v.  Brathwait,  Hob.  105,  it  was  resolved  '  that  a  mere 
voluntary  courtesy  will  not  liave  a  consideration  to  uphold  an  assumpsit.  But  if  that 
courtesy  were  moved  by  a  suit  or  request  of  the  party  tliat  gives  the  assumpsit,  it 
will  bind ;  fur  the  promise,  though  it  follows,  is  not  naked,  and  couples  itself  with 
the  suit  before,  and  the  merits  of  the  party  procured  by  that  suit.'  And  in  Bret  v. 
J.  S.  and  iiis  Wife,  Cro.  Eliz.  756,  where  the  first  husband  of  the  wife  sent  his  son  to 
table  with  the  plaintiff  for  three  years  at  8/.  per  annum,  and  died  within  the  year, 
and  the  wife  during  hir  widowhood,  in  consideration  that  the  son  should  continue 
the  residue  of  tlie  time,  promised  to  pay  the  plaintiff  6/.  13s.  4rf.  for  the  time  past, 
and  8/.  for  every  year  after,  and  upon  which  promise  the  plaintiff  brought  his  action ; 
the  court  held  that  natural  affection  was  not  of  itself  a  sufficient  ground  for  aa 
assumpsit ;  for  although  it  was  sufficient  to  raise  an  use,  yet  it  was  not  suificient  to 
ground  an  action  without  an  express  quid  pro  quo ;  but  tliat  as  the  promise  was  not 
only  in  consideration  of  affection,  but  that  the  son  should  afterwards  continue  at  the 
plaintiff's  table,  it  was  sufficient  to  support  a  promise.  In  Harford  v.  Gardiner,  2  Leo. 
30,  it  was  said  by  the  Court,  that  love  and  friendship  are  not  considerations  to  found 
actions  upon ;  and  in  Best  v.  Jolly,  1  Sid.  38,  where  a  father  was  held  liable  for  hi» 
own  and  his  son's  debt,  because  he  had  promised  to  pay  them  if  the  plaintiff  would 
forbear  to  sue  for  them,  yet  the  Court  said  '  he  was  not  liable  for  his  son's  debt,'  but 
having  induced  forbearance,  which  is  a  damage  to  the  plaintiff,  he  was  held  liable, 
'  though  as  to  the  son's  debt  it  was  no  benefit  to  the  defendant.'  So  in  Besfich  v. 
Coggil,  Palm.  659,  it  was  debated  whether  tlie  defendant  was  liable  upon  an  express 
promise  to  repay  the  plaintiff  money  laid  out  by  him  in  Spain  for  the  defendant's 
son,  and  the  charges  of  his  funeral ;  Hyde,  C.  J.,  and  Whitelocke  being  of  opinion 
that  tlie  action  could  not  be  maintained;  Jones  and  Dodderidge  e  cmitra  tliat  it 
could.  The  former  of  which,  it  should  seem,  was  the  better  opinion ;  for  in  Butcher 
V.  Andrews,  Carth.  446,  on  assumpsit  for  money  lent  by  the  plaintiff  to  the  defend- 
ant's son  at  liis  instance  and  request,  and  verdict  for  the  plaintiff,  the  judgment  was 
arrested,  Holt,  C.  J.,  saying,  '  If  it  had  been  an  indebitatus  for  so  much  money  paid 
by  the  plaintiff  at  the  request  of  the  defendant  unto  his  son,  it  might  have  been 
good,  for  then  it  would  be  the  father's  debt  and  not  the  son's ;  but  when  the  money 
is  lent  to  the  son,  it  is  his  proper  debt,  and  not  the  father's.'  But  in  Church  v.  Church, 
B.  R.  165f>,  cit.  Sir  T.  Ray.  260,  where  defendant  promised  to  repay  the  plaintiff  the 
charges  of  his  son's  funeral,  the  latter  was  held  entitled  to  recover,  though  no  request 
was  laid  in  the  declaration.  Of  which  case  it  may  be  observed,  that  possibly  after 
verdict  the  Court  presumed  a  request  proved ;  for  in  Hayes  v.  Warren,  2  Str.  933, 
though  the  Court  would  not  jjresume  a  request  after  judgment  by  default,  yet  they 
said  they  would  have  presumed  it  after  verdict.  However,  in  Style  v.  Smith,  cited 
by  Pophani,  J.,  2  Leon.  Ill,  it  was  determined  that  if  a  physician  in  the  absence  of 
a  father  give  his  son  medicine,  and  the  father  in  consideration  promise  to  pay  him, 
an  action  will  lie  for  the  money.  But  the  case  of  Style  v.  Smith,  if  closely  exam- 
ined, will  not  perhaps  be  found  so  discordant  with  the  principle  laid  down  in  Bret  v. 
J.  S.  and  his  Wife,  as  may  be  supposed.  From  the  expression  '  in  the  absence  of  a 
father,'  use<l  in  that  case,  it  may  be  inferred  tiiat  the  son  lived  with  tlie  father,  and 
that  the  medicine  was  adiiiiiiistered  to  the  son  in  the  house  of  the  father  while  the 
latter  was  absent,  from  wlu'iice  it  results  that  the  physician's  debt,  though  not 
foundnd  (ui  any  immediate  btMiefit  to  the  father,  or  ou  his  request,  was  most  proba- 
bly founded  on  his  credit;  which  credit,  if  fairly  inferred  from  circumstances  by  iit> 
TOL.  I.  —  22 


338  EASTWOOD   V.   KENTON.  [CHAP.  I. 

right  of  action,  if  the  obligation  on  which  it  is  founded  never  could 
have  been  enforced  at  law,  though  not  barred  by  any  legal  maxim  or 
statute  provision."  Instances  are  given  of  voidable  contracts,  as  tliose 
of  infants  ratified  by  an  express  promise  after  age,  and  distinguished 
from  void  contracts,  as  of  married  women,  not  capable  of  ratification 
b}'  them  when  widows :  Llovd  v.  Lee  ;  debts  of  bankrupts  revived  by 
subsequent  promise  after  certificate  ;  and  similar  cases.  Since  that 
time  some  cases  have  occurred  upon  this  subject,  which  require  to  be 
more  particularly  examined.  Barnes  v.  Hedley  decided  that  a  prom- 
ise to  i-epay  a  sum  of  money  with  legal  interest,  which  sum  had 
originally  been  lent  on  usurious  terms,  but,  in  taking  the  account  of 
which,  all  usurious  items  had  been  by  agreement  struck  out,  was  bind- 
ing. Lee  V.  Muggeridge  upheld  an  assumpsit  by  a  widow  that  her 
executors  should  pay  a  bond  given  by  her  while  a,  feme  covert  to  secure 
money  then  advanced  to  a  third  person  at  her  request.  On  the  latter 
occasion  the  language  of  Mansfield,  C.  J.,  and  of  the  whole  Coin-t  of 
Common  Pleas,  is  ver}'^  large,  and  hardly  susceptible  of  any  limitation. 
It  is  conformable  to  the  expressions  used  by  the  judges  of  this  court 
in  Cooper  v.  Martin,'  where  a  stepfather  was  permitted  to  recover  from 

physician,  miirlit  operate  to  charge  the  father  in  the  same  way  as  his  request  would 
operate,  the  pliysician  having  sustained  a  loss  in  consequence  of  that  credit.  Indeed, 
if  any  of  tlie  cases  could  be  sustained  on  the  principle  that  a  father  is,  by  the  mere 
force  of  moral  obligation,  bound  to  pay  what  has  been  advanced  for  his  son,  becauae 
he  has  subsequently  promised  to  pay  it,  b}'  the  same  rule  the  son  should  be  liable  for 
the  debt  of  the  father  upon  a  similar  promise  ;  for  the  same  moral  obligation  exista 
in  both  cases  Yet  in  Barber  v.  Fox,  2  Saund.  186,  the  Court  arrested  the  judgment 
in  an  action  of  assumpsit  on  a  promise  made  b^'  the  defendant  to  avoid  being  sued 
on  a  bond  of  his  father,  it  not  oeing  alleged  that  the  defendant's  father  had  bound 
himself  and  his  heirs ;  for  they  refused  to  intend  even  after  verdict  that  the  bond 
was  in  the  usual  form,  and  consequently  held  the  promise  of  the  defendant  nudum 
pactum,  he  not  appearing  to  have  been  liable  to  be  sued  upon  the  bond.  And 
this  last  case  was  confirmed  in  Hunt  v.  Swain,  1  Lev.  165,  Sir  T.  Hay.  127, 1  Sid.  248. 
See  note  2  to  Barber  v.  Fox,  by  Mr.  Serjt.  Williams.  Indeed  it  is  clear  from  Lloyd 
».  Lee,  1  Str.  94,  and  Cockshott  v.  Bennett,  2  T.  R.  763,  that  if  a  contract  between 
two  persons  be  void,  and  not  merely  voidable,  no  subsequent  express  promise  will 
operate  to  cliarge  the  party  promising,  even  though  he  has  derived  a  benefit  from 
the  contract  Yet  according  to  the  commonly  received  notion  respecting  moral  obli- 
gations and  the  force  attributed  to  a  subsequent  express  promise,  such  a  person 
ought  to  pay.  An  express  promise,  therefore,  as  it  should  seem,  can  only  revive  a 
precedent  good  consideration,  which  might  have  been  enforced  at  law  through  the 
medium  of  an  implied  promise,  had  it  not  been  suspended  by  some  positive  rule  of 
law,  but  can  give  no  original  right  of  action,  if  the  obligation  on  which  it  is  founded 
never  could  have  been  enforced  at  law,  though  not  barred  by  any  legal  maxim  or 
statute  provision.  In  addition  to  the  cases  already  collected  upon  this  subject,  it 
may  be  observed  that  in  Mitchinson  v.  Ilewson,  7  T.  R.  348,  the  Court  of  King's 
Bench,  upon  the  authority  of  Drue  v.  Thorne,  All.  72,  held  a  husband  not  liable  to 
be  sued  alone  for  the  debt  of  his  wife  contracted  before  marriage,  though  the  objec- 
tion was  only  taken  in  arrest  of  judgment,  and  consequently  a  pronuse  by  him  to  pay 
the  debt  appeared  upon  the  record.  From  whence  this  principle  may  be  extracted  : 
that  an  obligation  to  pay  in  one  right,  even  though  it  be  a  legal  oblipation,  and 
coupled  with  an  express  promise,  will  not  support  an  assumpsit  to  pay  in  anothe? 
right." — Ed.] 
^  4  East.  76. 


SECT,   n.]  EASTWOOD  V.   KENYON.  339 

the  son  of  his  wife,  after  he  had  attained  his  full  age,  upon  a  declara- 
tion for  necessaries  furnished  to  him  while  an  infant,  for  which,  after 
his  full  age,  he  promised  to  pay.  It  is  remarkable  that  in  none  of 
these  was  there  any  allusion  made  to  the  learned  note  in  3  Bosanquet 
and  Puller,  above  referred  to,  and  which  has  been  very  generally 
thought  to  contain  a  correct  statement  of  the  law.  The  case  of  Barnes 
V.  Hedley  is  fuUy  consistent  with  the  doctrine  in  that  note  laid  down. 
Cooper  V.  Martin,  also,  when  fully  examined,  will  be  found  not  to  be 
inconsistent  with  it.  This  last  case  appears  to  have  occupied  the 
attention  of  the  Court  much  more  in  respect  of  the  supposed  statutable 
liability  of  a  stepfather,  which  was  denied  by  the  Court,  and  in  respect 
of  what  a  court  of  equity  would  hold  as  to  a  stepfather's  liability,  and 
rather  to  have  assumed  the  point  before  us.  It  should,  however,  be 
observed  that  Lord  EUenborough,  in  giving  his  judgment,  says  :  "  The 
plaintiff  having  done  an  act  beneficial  for  the  defendant  in  his  infancy, 
it  is  a  good  consideration  for  the  defendant's  promise  after  he  came  of 
age.  In  such  a  case  the  law  will  imply  a  request,  and  the  fact  of  the 
promise  has  been  found  by  the  jury."  And  undoubtedly  the  action 
would  have  lain  against  the  defendant  whilst  an  infant,  inasmuch  as  it 
was  for  necessaries  furnished  at  his  request,  in  regard  to  which  the  law 
raises  an  implied  promise.  The  case  of  Lee  v.  Muggeridge  must,  how- 
ever, be  allowed  to  be  decidedly  at  variance  with  the  doctrine  in  the 
note  alluded  to,  and  is  a  decision  of  great  authority.  It  should,  how- 
ever, be  observed  that  in  that  case  there  was  an  actual  request  of  the 
defendant  during  coverture,  though  not  one  binding  in  law ;  but  the 
ground  of  decision  there  taken  was  also  equally  applicable  to  Little- 
field  V.  Shee,  tried  by  Gaselee,  J.,  at  N.  P.,  when  that  learned  judge 
held,  notwithstanding,  that  ''the  defendant  ha\ing  been  a  married 
woman  when  the  goods  were  supplied,  her  husband  was  originally 
hable,  and  there  was  no  consideration  for  the  promise  declared  upon." 
After  time  taken  for  deliberation,  this  Court  refused  even  a  rule  to  show 
cause  why  the  nonsuit  should  not  be  set  aside.  Lee  v.  Muggeridge 
was  cited  on  the  motion,  and  was  sought  to  be  distinguished  by  Lord 
Tenterden,  because  there  the  circumstances  raising  the  consideration 
were,  set  out  truly  upon  the  record ;  but  in  Littlefield  v.  Shee  th«> 
declaration  stated  the  consideration  to  be  that  the  plaintiff  had  sup- 
phed  the  defendant  with  goods  at  her  request,  which  the  plaintiff  failed 
in  proving,  inasmuch  as  it  appeared  that  the  goods  were  in  point  of  law 
supplied  to  the  defendant's  husband,  and  not  to  her.  But  Lord  Ten- 
terden added  that  the  doctrine  that  a  moral  obUgation  is  a  suflScien 
consideration  for  a  subsequent  promise  is  one  which  should  be  received 
with  some  limitation.  This  sentence,  in  truth,  amounts  to  a  dissent 
from  the  authority  of  Lee  v.  Muggeridge,  where  the  doctrine  is  wholly 
unqualified. 

The  eminent  counsel  who  argued  for  the  plaintiff  in  Lee  v.  Mugger- 
idge spoke  of  Lord  Mansfield  as  having  considered  the  rule  of  nudum 
pactum  as  too  nan*ow,  and  maintained  that  all  promises  deliberately 


340  EASTWOOD   V.   KENYON.        .  [CHAP.   T. 

made  ought  to  be  held  binding.  I  do  not  find  this  language  ascribed 
to  him  by  any  reporter,  and  do  not  know  whether  we  are  to  receive  it 
as  a  traditional  report,  or  as  a  deduction  from  what  he  does  appear  to 
have  laid  down.  If  the  latter,  the  note  to  Wennall  v.  Adnej'  shows 
the  deduction  to  be  erroneous.  If  the  former,  Lord  Tenterden  and 
this  Court  declared  that  they  could  not  adopt  it  in  Littlefield  v.  Shee. 
Indeed  the  doctrine  would  annihilate  the  necessity  for  any  considera- 
tion at  all,  inasmuch  as  the  mere  fact  of  giving  a  promise  creates  a 
moral  obligation  to  perform  it. 

The  enforcement  of  such  promises  by  law,  however  plausibly  recon- 
ciled b}'  the  desire  to  effect  all  conscientious  engagements,  might  be 
attended  with  mischievous  consequences  to  society,  one  of  which  would 
be  the  frequent  preference  of  voluntary  undertakings  to  claims  for  just 
debts.  Suits  would  thereby  be  multipUed,  and  voluntary  undertakings 
would  also  be  multiplied,  to  the  prejudice  of  real  creditors.  The 
temptations  of  executors  would  be  much  increased  by  the  prevalence 
of  such  a  doctrine,  and  the  faithful  discharge  of  their  duty  be  rendered 
more  difficult. 

Taking,  then,  the  promise  of  the  defendant,  as  stated  on  this  record, 
to  have  been  an  express  promise,  we  find  that  the  consideration  for  it 
was  past  and  executed  long  before  ;  and  yet  it  is  not  laid  to  have  been 
at  the  request  of  the  defendant,  nor  even  of  his  wife  while  sole  (though 
if  it  had,  the  case  of  Mitchinson  v.  Hewson  ^  shows  that  it  would  not 
have  been  sufficient) ,  and  the  declaration  really  discloses  nothing  but 
a  benefit  voluntarily  coixferred  by  the  plaintiff  and  received  by  the 
defendant,  with  an  express  promise  by  the  defendant  to  pay  money. 

If  the  subsequent  assent  of  the  defendant  could  have  amounted  to  a 
ratihabition  the  declaration  should  have  stated  the  money  to  have  been 
expended  at  his  request,  and  the  ratification  should  have  been  rehed 
on  as  matter  of  evidence  ;  but  this  was  obviously  impossible,  because 
the  defendant  was  in  no  way  connected  with  the  property  or  with  the 
plaintiff,  when  the  money  was  expended.  If  the  ratification  of  the 
wife  while  sole  were  relied  on,  then  a  debt  from  her  would  have  been 
shown,  and  the  defendant  could  not  have  been  charged  in  his  own 
right  without  some  further  consideration,  as  of  forbearance  after  mar- 
riage, or  something  of  that  sort ;  and  then  another  point  would  have 
arisen  upon  the  Statute  of  Frauds  which  did  not  arise  as  it  was,  but 
which  might  in  that  case  have  been  available  under  the  plea  of  non 
assumpsit. 

In  holding  this  declaration  bad,  because  it  states  no  consideration  but 
a  past  benefit  not  conferred  at  the  request  of  the  defendant,  we  conceive 
that  we  are  justified  hy  the  old  common  law  of  England. 

Lampleigh  v.  Brathwait  is  selected  b}^  Mr.  Smith  ^  as  the  leading  case 
on  this  subject,  which  was  there  fully  discussed,  though  not  necessary 
to  the  decision.  Hobart,  C.  J.,  lays  it  down  that  a  "•  mere  voluntary 
courtesy  will  not  have  a  consideration  to  uphold  an  assumpsit.     But  if 

1  7  T.  R.  348.  2  1  Smith's  Leading  Cases,  67. 


SECT.   II.]  MILLS   V.  WYMAN,  341 

that  courtesy  were  moved  by  a  suit  or  request  of  the  party  that  gives 
the  assumpsit,  it  will  bind;  for  the  promise,  though  it  follows,  yet  it 
is  not  naked,  but  couples  itself  with  the  suit  before,  and  the  merits 
of  the  party  procured  by  that  suit;  which  is  the  difference;  "  a  differ- 
ence brought  fully  out  by  Hunt  v.  Bate,  there  cited  from  Dyer,  where 
a  promise  to  indemnify  the  plaintiff  against  the  consequences  of 
having  bailed  the  defendant's  servant,  which  the  plaintiff  had  done 
without  request  of  the  defendant,  was  held  to  be  made  without  con- 
sideration; but  a  promise  to  pay  20/.  to  plaintiff,  who  had  married 
defendant's  cousin,  but  at  defendant's  special  instance,  was  held 
binding. 

The  distinction  is  noted,  and  was  acted  upon,  in  Townsend  v.  Hunt, 
and  indeed  in  numerous  old  books;  while  the  principle  of  moral  ob- 
ligation does  not  make  its  appearance  till  the  days  of  Lord  Mansfield, 
and  then  under  circumstances  not  inconsistent  with  this  ancient  doc- 
trine when  properly  explained. 

Upon  the  whole,  we  are  of  opinion  that  the  rule  must  be  made  abso- 
lute to  arrest  the  judgment. 

Hule  to  arrest  judgment^  absolute.^ 


DANIEL  MILLS  v.  SETH  WYMAN. 
Supreme  JuDiciAi  Court  of  Massachusetts,  October  Term,  1825. 

[Reported  in  3  Pickering,  207.] 

This  was  an  action  of  assumpsit  brought  to  recover  a  compensation 
for  the  board,  nursing,  &c.,  of  Le\-i  \V}-man,  son  of  the  defendant,  from 
the  5th  to  the  20th  of  February,  1821.  The  plaintilf  then  lived  at 
Hartford,  in  Connecticut ;  the  defendant,  at  Shrewsbury,  in  this  State. 
Levi  AVyman,  at  the  time  when  the  services  were  rendered,  was  about 
twenty-five  years  of  age,  and  had  long  ceased  to  be  a  member  of  his 
fathers  family.     He  was  on  his  return  from  a  voyage  at  sea,  and  being 

1  In  most  jurisdictious  a  moral  obligation  is  now  held  insufficient  consideration,  and 
the  distinction  suggested  in  the  note  to  Wennall  v.  Adney  is  invoked  to  support  such 
promises  as  the  ratification  of  an  infant's  promise  or  a  promise  to  pay  a  debt  barred 
by  bankruptcy  or  the  Statute  of  Limitations.  See  53  L.  R.  A.  353  n.  In  a  few  juris- 
dictions, however,  the  doctrine  that  moral  obligation  may  support  a  promise  is  still  in 
force.  Ga.  Code,  §  2741 ;  McElven  v.  Sloan,  56  Ga.  208,  209  ;  Gray  v.  Hamil,  82  Ga. 
375 ;  Brown  v.  Latham,  92  Ga.  280 ;  Spear  v.  Griffith,  86  111.  552  ;  Lawrence  v.  Og- 
lesby,  178  111.  122  (but  see  Hobbs  v.  Greifenhagen,  91  111.  App.  400)  ;  Pierce  i;.\Valton,  20 
Ind.' App.  66  ;  Robinson  v.  Hurst,  78  Md.  59  ;  Edwards  v.  Nelson,  51  Mich.  121  ;  Hemp- 
hill V.  McClimans,  24  Pa.  367  ;  Landis  v.  Royer,  59  Pa.  95 ;  Stebbins  v.  Crawford,  92 
Pa.  289  ;  Holden  v.  Banes,  140  Pa.  63  ;  Sutch's  Appeal,  201  Pa.  305  ;  State  v.  Butler, 
11  Lea,  418.     See  also  Ferguson  v.  Harris,  39  S.  C.  323, 


342  MILLS   V.    WYMAN.  [CHAP.   I. 

suddenly  taken  sick  at  Hartford,  and  being  poor  and  in  distress,  was 
relieved  by  the  plaintiff  in  the  manner  and  to  the  extent  above  stated. 
On  the  24th  of  February,  after  all  the  expenses  had  been  incurred,  the 
defendant  wrote  a  letter  to  the  plaintiff,  promising  to  pay  him  such 
exjjenses.  There  was  no  consideration  for  this  promise,  except  what 
grew  out  of  the  relation  which  subsisted  between  Levi  Wj^man  and  the 
defendant ;  and  Howe,  J.,  before  whom  the  cause  was  tried  in  the  Com! 
of  Common  Pleas,  thinking  this  not  sufficient  to  support  the  action, 
directed  a  nonsuit.     To  this  direction  the  plaintiff  filed  exceptions. 

/.  Davis  and  Allen.,  in  support  of  the  exceptions.  The  moral  oil  illa- 
tion of  a  parent  to  support  his  child  is  a  sufficient  consideration  for 
an  express  promise.  Andover,  &c.  Turnpike  Corp.  v.  Gould,  6  Mass. 
40 ;  Andover  v.  Salem,  3  Mass.  438  ;  Davenport  v.  Mason,  15  Mass. 
94 ;  1  Bl.  Comm.  446  ;  Reeve's  Dom.  Rel.  283.  The  arbitrary  rule 
of  law,  fixing  tlie  age  of  twenty-one  years  for  the  period  of  emancipa- 
tion, does  not  interfere  with  this  moral  obhgation,  in  case  a  child  of 
full  age  shall  be  unable  to  support  himself.  Our  Statute  of  1793,  c.  59, 
requiring  the  kindred  of  a  poor  person  to  support  him,  proceeds  upon 
the  ground  of  a  moral  obligation. 

But  if  there  was  no  moral  obligation  on  the  part  of  the  defendant,  it 
is  sufficient  that  his  promise  was  in  writing,  and  was  made  deliberately, 
with  a  knowledge  of  all  the  circumstances.  A  man  has  a  right  to  give 
away  his  property.  [Parker,  C.  J.  There  is  a  distinction  between 
giving  and  promising.]  The  case  of  Bowers  v.  Hurd,  10  Mass.  427, 
does  not  take  that  distinction.  [Parker,  C.  J.  That  case  has  been 
doubted.]  Neither  does  the  case  of  Packard  v.  Richardson,  17  Mass. 
122  ;  and  in  this  last  case  (p.  130)  the  want  of  consideration  is  treated 
&.?  a  technical  objection. 

Brigham.,  for  the  defendant,  furnished  in  vacation  a  written  argu- 
ment, in  which  he  cited  Fowler  v.  Shearer,  7  Mass.  22 ;  Rann  v. 
Hughes,  7  T.  R.  350,  note  ;  Jones  y.  Ashbm-nham,  4  East,  463  ;  Pear- 
son t'.  Pearson,  7  Johns.  26  ;  Schoonmaker  y.  Roosa,  17  Johns.  301  ; 
the  note  to  Wennall  v.  Adney,  3  Bos.  «&  Pul.  249  ;  Fink  y.  Cox,  18 
Johns.  145 ;  Barnes  y.  Hedley,  2  Taunt.  184 ;  Lee  v.  Muggeridge, 
5  Taunt.  36.  He  said  the  case  of  Bowers  v.  Hurd  was  upon  a  promis- 
sory note,  where  the  receipt  of  value  is  acknowledged ;  which  is  a 
privileged  contract.  Li%-ingston  y.  Hastie,  2  Caines,  246  ;  Bishop  y. 
Young,  2  Bos.  &  Pul.  79,  80  ;  Pillans  y.  Mierop,  3  Burr.  1670  ;  1  Wms. 
Saund.  211,  note  2. 

The  opinion  of  the  Court  was  read,  as  drawn  up  by 

Parker,  C.  J.  General  rules  of  law  established  for  the  protection 
and  security  of  honest  and  fair-minded  men,  who  may  inconsiderately 
make  promises  without  any  equivalent,  will  sometimes  screen  men  of 
a  different  character  from  engagements  which  thej'  are  bound  in  foro 
conscientice  to  perform.  This  is  a  defect  inherent  in  all  human  systems 
of  legislation.  The  rule  that  a  mere  verbal  promise,  without  any  con- 
sideration, cannot  be  enforced  bv  action,  is  universal  in  its  application, 


SECT,   n.]  MILLS   V.   WYMAK.  343 

and  cannot  be  departed  from  to  suit  particular  cases  in  which  a  reftisaJ 
to  perform  such  a  promise  may  be  disgraceful. 

The  promise  declared  on  in  this  case  appears  to  have  been  made 
without  any  legal  consideration.  The  kindness  and  services  towards 
the  sick  son  of  the  defendant  were  not  bestowed  at  his  reciuest.  The 
son  was  in  no  respect  under  the  care  of  the  defendant.  lb-  was 
twenty-five  years  old,  and  had  long  left  his  father's  family.  On  bis 
return  from  a  foreign  country,  he  fell  sick  among  strangers,  and  the 
plaintifl"  acted  the  part  of  the  good  Samaritan,  giving  him  shelter  and 
comfort  until  he  died.  The  defendant,  his  father,  on  being  informed 
of  this  event,  influenced  b}'  a  transient  feeling  of  gratitude,  promised  in 
writing  to  pay  the  plaintiflT  for  the  expenses  he  had  incurred.  But  he 
has  determined  to  break  this  promise,  and  is  willing  to  have  his  case 
appear  on  record  as  a  strong  example  of  particular  injustice  sometimes 
necessaril}'  resulting  from  the  operation  of  general  rules. 

It  is  said  a  moral  obligation  is  a  sufficient  consideration  to  support 
an  express  promise ;  and  some  authorities  lay  down  the  rule  thus 
broadly  ;  but  upon  examination  of  the  cases  we  are  satisfied  that  the 
universality  of  tlie  rule  cannot  be  supported,  and  that  there  must  have 
been  some  pre-existing  obligation,  which  has  become  inoperative  by 
positive  law,  to  form  a  basis  for  an  etfective  promise.  The  cases  of 
debts  barred  by  the  Statute  of  Limitations,  of  debts  incurred  by 
infants,  of  debts  of  bankrupts,  are  generally"  put  for  illustration  of  the 
rule.  Express  promises  founded  on  such  pre-existing  equitable  obhga- 
tions  may  be  enforced ;  there  is  a  good  consideration  for  them  ;  they 
merely  remove  an  impediment  created  by  law  to  the  recovery  of  debts 
honestly  due,  but  which  public  policy  protects  the  debtors  from  being 
compelled  to  pay.  In  all  these  cases  there  was  originally  a  quid  pro 
quo,  and  according  to  the  principles  of  natural  justice  the  party 
recei^nng  ought  to  pa}' ;  but  the  legislature  has  said  he  shall  not  be 
coerced ;  then  comes  the  promise  to  paj"^  the  debt  that  is  barred,  the 
promise  of  the  man  to  pa}'  the  debt  of  the  infant,  of  the  discharged 
bankrupt  to  restore  to  his  creditor  what  b}'  the  law  he  had  lost.  In  all 
these  cases  there  is  a  moral  obligation  founded  upon  an  antecedent 
valuable  consideration.  These  promises,  therefore,  have  a  sound  legal 
basis.  They  are  not  promises  to  pay  something  for  nothing  ;  not  naked 
pacts,  but  the  voluntary  revival  or  creation  of  obligations  which  before 
existed  in  natural  law,  but  which  had  been  dispensed  with,  not  for  the 
benefit  of  the  party  obliged  solely,  but  principall}'  for  the  pubUc  con- 
venience. If  moral  obligation,  in  its  fullest  sense,  is  a  good  substratum 
for  an  express  promise,  it  is  not  easy  to  perceive  why  it  is  not  equally 
good  to  support  an  imphed  promise.  What  a  man  ought  to  do,  gener- 
alh"  he  ought  to  be  made  to  do,  whether  he  promise  or  refuse.  But  the 
law  of  society  has  left  most  of  such  obligations  to  the  iyiterior  foiiun,  as 
the  tribunal  of  conscience  has  been  aptly  called.  Is  there  not  a  moral 
obligation  upon  every  son  who  has  become  affluent  by  means  of  the 


344  MILLS   V.   WYMAN.  [CHAP.   L 

education  and  advantages  bestowed  upon  him  by  his  father,  to  relieve 
that  father  from  pecuniar}^  embarrassment,  to  promote  his  comfort  and 
happiness,  and  even  to  share  with  him  his  riches,  if  thereby  he  will  be 
made  happ}'?  And  3'et  such  a  son  may,  with  impunity,  leave  such  a 
father  in  an}'  degree  of  penury  above  that  which  will  expose  the  com- 
munity in  which  he  dwells  to  the  danger  of  being  obliged  to  preserve 
him  from  absolute  want.  Is  not  a  wealthy  father  under  strong  moral 
obligation  to  advance  the  interest  of  an  obedient,  well-disposed  son,  to 
furnish  him  with  the  means  of  acquiring  and  maintaining  a  becoming 
rank  in  life,  to  rescue  him  from  the  horrors  of  debt  incurred  by  rusfor- 
tune  ?  Yet  the  law  will  uphold  him  in  any  degree  of  parsimony,  short 
of  that  which  would  reduce  his  son  to  the  necessity  of  seeking  pubhc 
charity 

Without  doubt  there  are  great  interests  of  society  which  justify 
withholding  the  coercive  arm  of  the  law  from  these  duties  of  imperfect 
obhgation,  as  they  are  called ;  imperfect,  not  because  they  are  less 
binding  upon  the  conscience  than  those  which  are  called  perfect,  but 
because  the  wisdom  of  the  social  law  does  not  impose  sanctions  upon 
them. 

A  deliberate  promise  in  writing,  made  freely  and  without  any  mis- 
take, one  which  may  lead  the  party  to  whom  it  is  made  into  contracts 
and  expenses,  cannot  be  broken  without  a  violation  of  moral  duty.  But 
if  there  was  nothing  paid  or  promised  for  it,  the  law,  perhaps  wisely, 
leaves  the  execution  of  it  to  the  conscience  of  him  who  makes  it.  It  is 
only  when  the  party  making  the  promise  gains  something,  or  he  to 
whom  it  is  made  loses  something,  that  the  law  gives  the  promise  valid- 
ity. And  in  the  case  of  the  promise  of  the  adult  to  pay  the  debt  of  the 
infant,  of  the  debtor  discharged  by  the  Statute  of  Limitations  or  bank- 
ruptcy, the  principle  is  preseiTed  by  looking  back  to  the  origin  of  the 
transaction,  where  an  equivalent  is  to  be  found.  An  exact  equivalent 
is  not  required  by  the  law ;  for  there  being  a  consideration,  the  paities 
are  left  to  estimate  its  value  :  though  here  the  courts  of  equit}'  will  step 
in  to  relieve  from  gross  inadequacy  between  the  consideration  and  the 
promise. 

These  principles  are  deduced  from  the  general  current  of  decided 
cases  upon  the  subject,  as  well  as  from  the  known  maxims  of  the  com- 
mon law.  The  general  position,  that  moral  obligation  is  a  sutRcient 
consideration  for  an  ex^jress  promise,  is  to  be  Umited  in  its  application 
to  cases  where  at  some  time  or  other  a  good  or  valuable  consideration 
has  existed. 

A  legal  obligation  is  always  a  sufficient  consideration  to  support 
either  an  express  or  an  implied  promise ;  such  as  an  infant's  debt  for 
necessaries,  or  a  father's  promise  to  pay  for  the  support  and  education 
of  his  minor  children.  But  when  the  child  shall  have  attained  to  man- 
hood, and  shall  have  become  his  own  agent  in  the  world's  business,  the 
debts  he  incurs,  whatever  may  be  their  nature,  create  no  obhgation 
upon  the  fatlier ;  and  it  seems  to  follow,  that  his  promise  founded  upon 
such  a  debt  has  no  legally  binding  force. 


SECT.  n.J  MILLS   V.   WYMAN.  345 

The  cases  of  instruments  under  seal  and  certain  mercantile  contiacts, 
in  which  considerations  need  not  be  proved,  do  not  contradict  the  prin- 
ciples above  suggested.  The  first  import  a  consideration  in  themselves, 
and  the  second  belong  to  a  branch  of  the  mercantile  law,  which  has 
found  it  necessary  to  disregard  the  point  of  consideration  in  respect  to 
instruments  negotiable  in  their  nature  and  essential  to  the  interests  of 
commerce. 

instead  of  citing  a  multiplicity  of  cases  to  support  the  positions  I 
have  taken,  I  wiU  onl}-  refer  to  a  verj'  able  review  of  all  the  cases  in 
the  note  in  3  Bos.  &  Pul.  249.  The  opinions  of  the  judges  had  been 
vai'iant  for  a  long  course  of  years  upon  this  subject,  but  there  seems  to 
oe  no  case  in  which  it  was  nakedly  decided,  that  a  promise  to  pay  the 
debt  of  a  son  of  full  age,  not  living  with  his  father,  though  the  debt 
were  incurred  b}'  sickness  which  ended  in  the  death  of  the  son,  with- 
out a  previous  request  by  the  father  proved  or  presumed,  could  be  en- 
forced by  action. 

It  has  been  attempted  to  show  a  legal  obligation  on  the  part  of  the 
defendant  by  virtue  of  our  statute,  which  compels  lineal  kindred  in  the 
ascending  or  descending  line  to  support  such  of  their  poor  relations  as 
are  likely  to  become  chargeable  to  the  town  where  they  have  their  set- 
tlement. But  it  is  a  sufficient  answer  to  this  position,  that  sucL  legal 
obligation  does  not  exist  except  in  the  very  cases  provided  for  in  th« 
statute,  and  never  until  the  part}'  charged  has  been  adjudged  to  be  of 
sufficient  ability  thereto.  We  do  not  know  from  the  report  any  of  the 
facts  which  are  necessary  to  create  such  an  obligation.  "Whether  the 
deceased  had  a  legal  settlement  in  this  Commonwealth  at  the  time  of 
his  death,  whether  he  was  Ukely  to  become  chargeable  had  he  lived, 
whether  the  defendant  was  of  sufficient  ability,  are  essential  facts  to  be 
adjudicated  by  the  court  to  which  is  given  jurisdiction  on  this  subject. 
The  legal  Uability  does  not  arise  until  these  facts  have  all  been  ascer 
tained  by  judgment,  after  hearing  the  party  intended  to  be  charged. 

For  the  foregoing  reasons  we  arc  all  of  opinion  that  the  nonsuit 
directed  by  the  Court  of  Common  Pleas  was  right,  and  that  judgment 
be  entered  thereon  for  costs  for  the  defendant.  ^ 

1  Loomis  V.  Newhall,  15  Pick.  159  ;  Dodge  v.  Adams,  19  Pick.  429  ;  Kelley  v.  Davis, 
49  N.  H.  187  ;  Freeman  v.  Robinson,  38  N.  J.  L.  383  ;  Nine  v.  Starr,  8  Oreg.  49  ;  Val- 
entine V.  Bell,  66  Vt.  280,  ace.  Similarly,  the  promise  of  a  child  to  pay  for  past  sup- 
port of  an  indigent  parent  has  been  held  invalid.  Cook  v.  Bradley,  7  Conn.  57  ;  Parker 
V.  Carter,  4  Munf.  273  ;  Davis  v.  Anderson,  99  Va.  625.  See  also  Ellicott  v.  Turner, 
4  M.  476  ;  Hook  v.  Pratt,  78  N.  Y.  371. 


346  DTJSENBUKT    V.    HOTT.  fCHAP.    L 


SAMUEL  B.   RINDGE  v.   WILLIAM   H.   KIMBALL. 
Supreme  Judicial  Court  of  Massachusetts,  March  6,   1878. 

[Reported  in  124  Massachusetts,  209.] 

Contract  upon  a  promissory  note  for  $500,  payable  to  the  order  of 
the  defendant,  and  indorsed  by  him  to  the  plaintiff. 

At  the  trial  in  the  Superior  Court,  before  Pitman,  J.,  without  a 
jury,  it  appeared  that  no  demand  had  been  made  on  the  note  or  notice 
of  non-payment  given  to  the  defendant;  but  it  was  admitted  that  the 
defendant  wrote  on  the  back  of  the  note  the  words,  "Waive  demand 
and  notice."  The  evidence  was  conflicting  upon  the  question  whether 
these  words  were  written  before  or  after  the  note  was  due. 

The  defendant  testified  that  he  wrote  these  words  upon  the  note 
intelligently  and  intentionally,  with  a  full  knowledge  of  all  the  mate- 
rial facts.  The  judge  ruled  that  such  a  waiver  of  demand  and  notice 
was  as  effectual  after  as  before  the  maturity  of  the  note,  and  ordered 
judgment  for  the  plaintiff.     The  defendant  alleged  exceptions. 

R.  Lund^  for  the  defendant. 

J.  Cutler^  for  the  plaintiff,  was  not  called  upon. 

By  the  Court.  This  point  has  been  repeatedly  determined  by  re- 
cent decisions  of  this  court,  and  should  not  have  been  brought  up 
again.  Matthews  v.  Allen,  16  Gray,  594;  Harrison  v.  Bailey,  99 
Mass.  620;  Third  National  Bank  v.  Ashworth,  105  Mass.  503. 

Exceptions  oveiTuled.^ 


BENJAMIN  G.  DUSENBUEY  u.  MARK  HOYT. 

New  York  Court  of  Appeaj.s,  September  29,  October  7,  1873. 

[Reported  in  .53  New  York,  521.| 

Appeal  from  a  judgment  of  the  General  Term  of  the  Superior  Court 
of  the  city  of  New  York,  aflirming  a  judgment  in  favor  of  defendant 
entered  upon  a  verdict,  and  affirming  order  denying  motion  for  a  new 
trial.      (Reported  below,  45  How.  Fr.  147.) 

The  action  was  upon  a  ijromissory  note.  The  defendant  pleaded  his 
dischai-ge  in  banlsruptcy.  Upon  the  trial,  after  proof  of  the  discharge, 
plaintiff  offered  to  prove  a  subsequent  promise  of  the  defendant  to  pay 

1  The  numerous  decisions  in  accord  are  collected  iu  Ames's  Cases  on  Bills  and 
Notes,  vol.  ii.  p.  504  n.  Decisions  in  which  a  surety,  who  had  been  discharged  by 
lack  of  notice  of  acceptance  or  dishonor,  was  held  bound  by  a  promise  to  pay,  are 
collected  in  Ames's  Cases  on  Suretyship,  227,  n.     ' 


SECT.    II.]  DIJSENBIJIiY   V.    HOYT.  347 

the  note.  Defendant  objected  upon  the  ground  that  the  action  was 
upon  the  note,  not  upon  the  new  promise.  The  Court  sustained  the 
objection,  and  directed  a  verdict  for  defendant,  which  was  rendered 
accordingly. 

D.  31.  Forter,  for  the  appellant. 

Cephas  Brainerd,  for  the  respondent. 

Andrews,  J.  Tlie  34th  section  of  the  bankrupt  law  declares  that  a 
discharge  in  bankruptej'  releases  the  bankrupt  from  all  debts  provable 
under  the  act,  and  that  it  may  be  pleaded  as  a  full  and  complete  bar  to 
all  suits  brought  thereon. 

The  legal  obligation  of  the  bankrupt  is  by  force  of  positive  law  dis- 
charged, and  the  remedy  of  the  creditor  existing  at  the  time  the  dis- 
charge was  granted  to  recover  his  debt  by  suit  is  barred.  But  the  debt 
is  not  paid  by  the  discharge.  The  moral  obligation  of  the  bankrupt  to 
pa}-  it  remains.  It  is  due  in  conscience,  although  discharged  in  law, 
and  this  moral  obligation,  uniting  with  a  subsequent  promise  by  the 
banlcnipt  to  pay  the  debt,  gives  a  right  of  action.  It  was  held  in 
Shippey  v.  Henderson  (14  J.  R.  178),  that  it  was  proper  for  the  plain- 
tiff, when  the  bankrupt  had  promised  to  pa}'  the  debt  after  his  dis- 
charge, to  bring  his  action  upon  the  original  demand,  and  to  reply  th« 
lew  promise  in  avoidance  of  the  discharge  set  out  in  the  plea.  Th( 
Dourt,  following  the  English  authorities,  said  that  the  replication  of  th< 
new  promise  was  not  a  departure  from  the  declaration,  but  supported  i1 
by  removing  the  bar  interposed  by  the  plea,  and  that  in  point  of  plead- 
ing it  was  like  the  cases  where  the  defence  of  infancy  or  the  Statute  of 
Limitations^  was  relied  upon.  The  case  of  Shippey  v.  Henderson  was 
followed  in  subsequent  cases,  and  the  doctrine  declared  in  it  became, 
prior  to  the  Code,  the  settled  law.  McNair  v.  Gilbert,  3  Wend.  344  ; 
Wait  V.  Morris,  6  id.  394  ;  Fitzgerald  v.  Alexander,  19  id.  402. 

The  question  whether  the  new  promise  is  the  real  cause  of  action, 
and  the  discharged  debt  the  consideration  which  supports  it,  or  whethei 
the  new  promise  operates  as  a  waiver  by  the  bankrupt  of  the  defence 
which  the  discharge  gives  him  against  the  original  demand,  has  occa- 
sioned much  diversity  of  judicial  opinion.  The  former  view  was  hel^ 
by  Makcy,  J.,  in  Depuy  v.  Swart  (3  Wend.  139),  and  is  probably  th( 
one  best  supported  by  authority.  But,  after  as  before  the  decision  ir 
that  case,  the  Court  held  that  the  original  demand  might  be  treated  ai 
the  cause  of  action,  and,  for  the  purpose  of  the  remedy,  the  decree  ii 
bankruptcy  was  regarded  as  a  discharge  of  t\\o  debt  sub  modo  only,  am 
che  new  promise  as  a  waiver  of  the  bar  to  the  recovery  of  the  deb* 
created  by  the  discharge.  We  arc  of  opinion  that  the  rule  of  pleading 
so  well  settled  and  so  long  established,  should  be  adhered  to.  Th< 
original  debt  may  still  be  considered  the  cause  of  action  for  the  purpos( 
of  the  remedy.  The  objection  that,  as  no  replication  is  now  requireti 
the  pleadings  will  not  disclose  the  new  promise,  is  equally  applicabli 

1  See  Encyc.  of  Pleading  and  Practice,  vol.  13,  p.  247. 


348  ILSLEY   V.   JEWETT.  [CHAP.   L 

where  a  new  promise  is  relied  upon  to  avoid  the  defence  of  infancy  or 
the  Statute  of  Limitations,  and  in  these  cases  the  plaintiff  may  now,  as 
before  the  Code,  declare  upon  the  original  demand.  (Esselstyn  «, 
Weeks,  12  N.  Y.  635.) 

The  offer  of  the  plaintiff  to  prove  an  unconditional  promise  by  the 
defendant,  after  his  discharge,  to  pay  the  debt,  was  improperly  over- 
ruled, and  the  judgment  should,  for  this  reason,  be  reversed,  and  a  new 
trial  ordered,  with  costs  to  abide  the  event. 

All  concur,  except  Folger,  J.,  not  voting.  Judgment  reversed,^ 


DAVID   ILSLEY   v.  JOHN  JEWETT  and  Others. 

iSuPREME  Judicial  Court  of  Massachusetts,  November  Term,  1841. 

[Reported  in  3  Metcalf,  4.39.] 

This  was  an  action  of  debt  on  a  bond  for  the  liberty  of  the  prison 
limits,  and  was  submitted  to  the  Court  on  the  following  facts  agreed 
by  the  parties  :  — ■ 

In  1814,  the  plaintiff  paid  money  as  surety  for  John  Jewett,  one  of 
the  defendants,  and  in  1840  brought  a  suit  against  him  to  recover  back 
the  money  so  paid.  Said  Jewett,  among  other  defences,  relied  on  the 
Statute  of  Limitations.  The  plaintiff,  to  meet  this  part  of  the  defence, 
proved  a  part  payment  by  the  defendant,  in  1839,  and  b}'  reason  thereof 
recovered  judgment  against  him  at  November  Term,  1840,  as  stated 
and  shown  in  the  report  of  the  case  of  Ilsley  v.  Jewett,  2  Met.  168, 
which  is  to  be  considered  as  part  of  this  case.  Said  judgment  was  for 
the  sum  of  $349.89  damages,  and  844.95  costs  of  suit,  and  the  plaintiff 
took  out  execution  thereon,  and  caused  the  defendant  to  be  committed, 
on  said  execution,  to  the  jail  in  Ipswich.  Said  defendant,  and  his  co- 
defendants  in  this  suit,  as  his  sureties,  thereupon  gave  bond  for  the 
liberty  of  the  prison  limits,  conditioned  (as  is  required  by  the  Rev. 
Stats.,  c.  97,  §  63),  that  he  would  not  go  without  the  exterior  limits 
of  the  prison  until  he  should  be  lawfully  discharged,  &c.  But  after  the 
giving  of  said  bond,  and  before  the  commencement  of  this  suit,  and 
also  before  he  was  discharged,  he  went,  several  times,  without  the 
boundaries  of  the  town  of  Ipswich. 

Defendants  to  be  defaulted,  if  such  going  without  the  boundaries  of 
the  town  of  Ipswich  was  a  breach  of  the  condition  of  said  bond  ;  if  not, 
the  plaintiff  to  become  nonsuit. 

0.  P.  Lord,  for  the  plaintiff.  By  the  Rev.  Stats.,  c.  14,  §  14,  a 
debtor,  committed  on  execution  issuing  upon  a  judgment  recovered  on 
a  contract  made  before  the  2d  of  April,  1S34,  is  entitled  only  to  the 

1  See  Lowell  on  Bankruptcy,  §  248. 


SECT.    II.]  ILSLEY   V.   JEWETT.  349 

limits  of  the  jail  yard  as  established  by  Stat.  1834,  c.  201  ;  viz.,  the 
boundaries  of  the  city  or  town  in  which  the  jail  to  which  he  is  commit- 
ted is  situated.  The  siugle  question  presented  by  the  facts  agreed  is, 
therefore,  this .  "Was  the  judgment  recovered  b}'  the  plaintiff  against 
John  Jew^ett,  in  1840,  recovered  on  a  contract  made  in  1814  or  in  1839  ? 
on  the  old  contract,  which  arose  upon  the  plaintiff's  pacing  money  for 
him,  as  his  surety,  or  on  the  new  promise  made  by  him,  in  1839,  by  his 
making  part  payment? 

The  Statute  of  Limitations  bars  only  the  remedy  on  a  contract,  and 
does  not  discharge  the  contract  itself.  Unless  a  new  promise  or  ac- 
knowledgment is  made,  the  remedy  is  barred  from  considerations  of 
public  polic}',  laying  out  of  the  question  any  consideration  whether 
the  debt  be  or  be  not  paid.  Per  Sedgwick,  J.,  7  Mass.  517;  S.  P. 
13  Mass.  203.  But  when  a  new  promise  or  acknowledgment  is  made, 
"  the  contract  is  not  within  the  intent  of  the  statute."  Baxter  v.  Penni- 
man,  8  Mass.  134  ;  Fiske  v.  Needham,  11  Mass.  453.  See  also  Newlin 
V.  Duncan,  1  Harring.  204. 

A  judgment  on  a  demand  which  is  taken  out  of  the  operation  of  the 
Statute  of  Limitations  b}'  a  new  promise  is  recovered  on  the  original 
contract,  and  not  on  the  new  promise.  This  appears  from  various 
considerations.  Thus:  In  Cogswell  v.  Dolliver,  2  Mass.  223,  it  was 
said  by  Sedgwick,  J.,  that  if  anj^  articles  charged  in  an  account  were 
sold  and  delivered  within  six  years  next  before  action  brought,  "  they 
will  draw  after  them  the  articles  bej'ond  six  years,  and  exempt  them 
from  the  operation  of  the  statute." 

An  acknowledgment  made  after  action  brought  will  support  the  action 
on  the  original  contract.  Yea  v.  Fouraker,  2  Bur.  1099.  So  an  ac- 
knowledgment b}'  an  executor,  administrator,  or  guardian,  will  bind  the 
estate  of  the  deceased  or  the  ward.  Brown  v.  Anderson,  13  Mass. 
203  ;  Emerson  v.  Thompson,  16  Mass.  429  ;  Manson  v.  Felton,  16 
Pick.  206.  So  an  acknowledgment  made  to  a  stranger  will  prevent 
the  operation  of  the  statute.  Richardson  v.  Fen,  Lofft,  86  ;  Mount- 
stephen  v.  Brooke,  3  Barn.  &  Aid.  141  ;  Peters  v.  Brown,  4  Esp. 
46  ;  Har\'ey  v.  Tobey,  15  Pick.  99.  And  a  parol  acknowledgment  of 
a  contract,  required  by  the  Statute  of  Frauds  to  be  in  writing,  has  the 
same  effect.  Gibbons  v.  M'Casland,  1  Barn.  &  Aid.  690.  So  an  ac- 
knowledgment by  one  joint  debtor  will  bind  the  others.  "VVhitcomb  v. 
Whiting,  2  Doug.  652  ;  Perham  v.  Raynal,  2  Bing.  306  ;  Johnson  v. 
Beardslee,  15  Johns.  3;  White  v.  Hale,  3  Pick.  291.  Even  by  one 
partner  after  a  dissolution  of  the  partnership.  Wood  u.  Braddick, 
1  Taunt.  104  ;  Simpson  v.  Geddes,  2  Bay,  533. 

In  addition  to  all  these  proofs  that  the  original  contract  has  always 
been  regarded  as  the  cause  of  action,  is  the  universal  practice  of  de- 
claring on  the  original  contract,  and  the  established  doctrine  that  proof 
of  a  new  promise  supports  such  declaration.  Leaper  v.  Tatton,  16 
East,  423  ;  Upton  v.  Else,  12  Moore,  304. 

Perkins  (  Ward  was  with  him) ,  for  the  defendants.     John  Jewett,  bj 


350 


ILSLEY   V.    JEWETT. 


[chap.  I. 


giving  the  plaintiff  a  negotiable  note  in  part  payment  (2  Met.  169), 
entered  into  a  new  contract,  and  gave  the  plaintiff  a  new  remedy. 
"The  reason,"  say  Lord  EUenborough  and  Parke,  J.,  "why  a  part 
pajTnent  takes  a  case  out  of  the  statute  is,  that  it  is  evidence  of  a  fresh 
promise."  1  Barn.  &  Aid.  93  ;  3  Barn.  &  Adolph.  511  ;  S.  P.  Sigour- 
ney  v.  Drury,  14  Pick.  390,  391  ;  Clark  v.  Hooper,  10  Bing.  481.  A 
new  promise  subjects  a  defendant  to  the  remedy'  applicable  to  a  new 
contract.  In  Presbrey  v.  Williams,  15  Mass.  194,  where  part  pajTnent 
had  been  made  on  a  note,  Jackson,  J.,  said,  the  plaintiff'  "  might  have 
brought  his  action  "  on  the  day  of  such  pa3'ment,  ' '  as  upon  the  new 
promise  then  made."  In  Little  v.  Blunt,  9  Pick.  494,  Wilde,  J.,  says : 
' '  the  new  promise  actually  gives  the  remedy,  and  is  substantially  the 
cause  of  action."  And  Richardson,  C.  J.,  in  Exeter  Bank  v.  Sullivan, 
6  N.  H.  136,  says,  "the  new  promise  is  not  deemed  to  be  a  continu- 
ance of  the  original  promise,  but  a  new  contri.^ct  supported  by  the 
original  consideration."  S.  P.  3  Bing.  643,  per  Gaselee,  J.,  Pittam  v. 
Foster,  1  Barn.  &  Cres.  250  ;  Tanner  r.  Smart,  6  Barn.  &  Cres.  606  ; 
Jones  V.  Moore,  5  Binn.  577 ;  4  Phil.  Ev.  (4th  Amer.  ed.)  138  ;  Bell 
V.  Morrison,  1  Pet.  371.  Acknowledgment  of  a  promise  by  a  part}% 
and  that  he  has  not  performed  it,  "creates  a  debt,"  says  Buyley,  J., 
16  East,  423.  Those  authorities  show  that  a  new  promise  does  not 
operate  by  way  of  reviving  the  old  promise  or  waiving  the  statute  bar, 
but  by  creating  a  fresh  contract.  There  is,  at  the  present  day,  no  dif- 
ference between  promises  to  pay  debts  barred  by  the  Statute  of  Limita- 
tions and  debts  discharged  under  a  banlo-upt  or  insolvent  act,  or  debts 
contracted  during  infancy.  An  express  promise  is  necessary  to  re- 
move either  of  these  bars.  Robarts  v.  Robarts,  3  Car.  &  P.  296  ; 
Oakes  v.  Mitchell,  3  Shepley,  860  ;  Moore  v.  Bank  of  Columbia,  6  Pet. 
86  ;  Sands  v.  Gelston,  15  Johns.  519.  As  it  regards  the  Statute  of 
Limitations,  there  must  be  a  cause  of  action  within  six  j'ears ;  and  that 
cause  accrues  upon  the  making  of  a  new  express  promise.  The  old 
promise  —  as  in  case  of  a  bankrupt  or  infant  —  is  merely  a  basis  or 
consideration  for  the  new  one.  Lonsdale  v.  Brown,  4  Wash.  C.  C.  150  ; 
Searight  v.  Craighead,  1  Pennsj'l.  138  ;  Mills  v.  Wyman,  3  Pick.  209, 
210.  The  new  promise  may  be  declared  on  (1  Selw.  N.  Prius,  4th 
Amer.  ed.,  49),  which  shows  that  it  is  a  new  cause  of  action.  It  is, 
indeed,  the  common  practice,  as  Lord  EUenborough  says,  16  East,  423, 
to  declare  on  the  original  contract.  "Probably,"  says  Best,  C.  J.,  12 
Moore,  304,  "  the  new  promise  ought  in  strictness  to  be  declared  on 
specially,  but  the  practice  is  inveterate  the  other  way."  In  3  Bing. 
332,  he  expressed  a  still  stronger  opinion.  But  this  practice  is  anoma- 
lous, and  is  not  allowed  in  suits  by  executors  or  administi-ators.  In 
England,  and  perhaps  in  all  the  States  of  the  Union  except  Massachu- 
setts and  New  Hampshire,  if  an  executor  or  administrator  sues  lor  a 
iebt  of  tlie  deceased,  and  relies  on  a  new  promise  to  himself  to  take  it 
out  of  the  Statute  of  Limitations,  he  must  declare  specially  on  the  new 
promise,  or  the  evidence  of  such  promise  will  not  support  the  declara- 


SECT.    U.]  ILSLEY   V.   JEWETT.  351 

tion.  Stephen  PI.  405,  406  ;  Gould  PI.  453,  454  ;  2  Stark.  Ev.  552. 
and  American  cases  cited  in  the  notes;  1  Chitty  PI.  (6th  Amer.  ed.) 
204,  392.  See  also  Pittam  v.  Foster,  1  Bam.  &  Cres.  248  ;  Lawes  PI. 
in  Assump.  730-732.  In  Baxter  v.  Penniman,  8  Mass.  133,  and  in 
Buswell  V.  Roby,  3  N.  H.  467,  it  was  held,  however,  that  an  adminis- 
trator need  not  declare  on  the  new  promise  ;  and  thus  the  anomaly  has 
been  extended  further,  in  this  Commonwealth  and  in  New  Hampshire, 
than  is  known  to  have  been  done  elsewhere.  But  whether  the  one  or 
the  other  form  of  declaring  is  adopted,  yet,  as  said  by  Wilde,  J.,  "  the 
new  promise  gives  the  remedy,  and  is  substantially  the  cause  of  action  , 
for  without  it  there  was  no  cause  of  action."  9  Pick.  492,  494.  The 
statute  bar  is  removed  by  a  new  promise,  either  because  the  presump- 
tion of  pajinent  is  thereby  removed  ;  or  because  the  defendant  thereby 
waives  the  benefit  of  the  statute ;  or  because  a  new  contract  is 
thereb)'  made,  which  is  supported  b}'  the  old  consideration.  The  cases 
that  have  been  cited  show  that  the  latter  is  the  onl}'  reason  which  courts 
now  recognize  :  and  therefore,  as  the  new  contract  gives  the  remedy, 
and  is  the  contract  on  which  in  effect  the  judgment  is  recovered,  the 
defendant,  if  committed  in  execution  on  the  judgment,  is  entitled  to  the 
enlarged  jail  limits;  viz.,  the  whole  county.     Rev.  Stats.,  c.  14,  §  13. 

Shaw,  C.  J.  In  debt  on  a  prison  bond  given  Jul}'  14,  1841,  the 
question  is,  whether  the  bond  was  broken  by  the  escape  of  the  prisoner  ; 
and  this  again  depends  upon  the  question,  what  were  the  prison  limits 
of  IpsTvich  jail,  for  this  prisoner,  in  1841  ?  This  depends  upon  Rev. 
Stats.,  c.  14,  §§  13,  14,  prescribing  different  limits  in  different  cases. 
'■'  On  executions  issuing  upon  judgments,  recovered  upon  contracts  made 
before  the  2d  of  April,  1834,  the  limits  of  each  jail  shall  remain  as  the 
same  were  established  previousl}'  to  that  day."  §  14.  It  is  conceded 
that,  prior  to  1834,  the  jail  limits'  included  a  space  much  less  than  the 
bounds  of  the  town  of  Ipswich.  If,  then,  the  contract  on  which  the 
plaintiff  recovered  his  former  judgment,  in  pursuance  of  which 
the  defendant  was  committed,  was  made  prior  to  the  2d  of  April, 
1834,  so  that  the  limits  for  him  were  those  which  existed  in  1834,  then 
the  defendant  made  an  escape,  and  the  bond  was  forfeited. 

It  appears  that  Adams  and  lisle}'  were  sureties  for  John  Jewett  on  a 
promissory  note ;  that  Adams  paid  the  whole  in  the  first  instance  ; 
that  8T*erwards  Adams  demanded  of  the  plaintiff'  one-half,  by  way  of 
contribution,  as  he  had  a  right  to  do ;  and  the  plaintiff  paid  the  same, 
as  be  was  bound  to  do.  On  that  pa}'ment,  the  defendant,  John  Jewett, 
as  principal  promisor,  became  indebted  to  the  plaintiff,  and  liable  to 
pay  him  the  same  amount  on  demand.  This  Uability  arose  from  the 
implied  promise  of  the  principal,  made  at  the  time  of  the  plaintiff's 
becoming  his  surety,  that,  in  case  the  plaintiff  should  be  called  on  to 
pay  any  thing  in  consequence  of  such  suretyship,  the  principal  would 
repay  the  same  on  demand.     [See  Appleton  v.  Bascom,  3  Met.  171.] 

Afterwards,  in  1839,  the  transaction  took  place,  as  stated  in  2  Met. 
i^H.  which  was  held  bv  the  Court  sufficient  evidence  of  part  payment 


^^2  WAY   V.   SPERRT.  [CHAP.  1, 

to  take  the  case  out  of  the  Statute  of  Limitations,  and  the  plaintiff  had 
judgment ;  and  the  question  is,  whether  this  is  a  judgment  recovered 
on  a  contract  made  before  April,  1834.  The  case  has  been  very  well 
argued  on  both  sides,  and  aU  the  authorities,  we  believe,  fully  cited. 
The  Court  are  of  opinion  that  the  judgment  must  be  considered  as  ren- 
dered on  the  old  contract;  that  a  payment,  or  new  promise,  or  an 
admission  from  which  a  new  promise  may  be  inferred,  is  considered 
as  removing  out  of  the  way  a  bar  arising  from  the  Statute  of  Limita- 
tions, so  as  to  enable  the  creditor  to  recover  notwithstanding  the  limita- 
tion ;  and  not  as  the  creation  of  a  new  substantive  contract,  which  is  to 
be  the  basis  of  the  judgment.  We  are  therefore  of  opinion  that  the 
facts  show  a  breach  of  this  bond,  and  that  the  plaintiff  is  entitled  to 
recover.  Defendants  defaulted.^ 


LORIN  WAY  V.  CHARLES  SPERRY. 
Supreme  Judicial  Court  of  Massachusetts,  October  Term,  1850. 

[Reported  in  6  Gushing,  238.] 

Tms  was  an  action  of  assumpsit,  commenced  on  the  12th  of  July, 
1848,  to  recover  the  amount  of  three  promissory  notes,  signed  by  the 
defendant,  and  indorsed  by  the  several  payees  thereof  to  the  plaintiff 
on  the  day  of  the  commencement  of  the  action.  These  notes  were 
dascribed  in  the  plaintiff's  bill  of  particulars,  as  follows  :  "  One  dated 
February  23,  183G,  for  818,  paj-able  to  Ebenezer  AVatson,  or  order, 
in  one  year,  with  interest;  one  dated  March  2,  1838,  for  $7.36, 
payable  to  Ebenezer  Watson  and  one  Flanders,  or  order,  on  demand, 
with  interest;  and  one  dated  March  14,  1839,  for  $18.30,  payable  to 
Ebenezer  Watson,  or  order,  on  demand,  with  interest." 

The  defendant  pleaded  the  general  issue,  and  in  defence  relied  on  the 
Statute  of  Limitations,  and  a  discharge  in  bankruptcj^,  dated  January  9, 
1843,  which  was  duly  proved,  and  by  its  terms  embraced  the  note  in 
question. 

At  the  trial  in  the  Court  of  Common  Pleas,  before  Mellen,  J.,  it  was  in 
evidence,  that  the  defendant,  in  May,  1843,  left  Columbia,  in  the  State 
of  New  Hampshire,  where  the  notes  were  dated,  and  became  an  inhabi- 
tant of  Lowell. 

It  was  also  testified  by  Watson,  the  payee  of  the  notes,  that  the 
defendant,  in  the  year  1845,  being  then  at  Claremont,  in  New  Hamp- 
shire, said  he  would  pay  Watson  the  notes  as  soon  as  he  possibly  could ; 
that  he  was  not  then  in  a  situation  to  pay  them,  but  that  Watson  need 

1  Cases  involving  the  effect  of  new  promises  upon  the  Statute  of  Limitations  are  so 
numerous  that  reference  must  be  made  to  the  treatises  on  the  subject. 


SECT,    II.]  WAY    V.    SPERRY.  353 

not  give  himself  any  uneasiness,  the  notes  should  be  paid  as  soon  as 
possible ;  that  in  January,  1846,  he  again  saw  the  defendant  in  Lowell, 
who  said,  that  he  was  then  engaged  upon  a  job  of  stone-work,  and 
should  have  the  money  in  April,  and  that  if  ^Yatson  would  come  or 
send  down  then,  he  would  pay  one  half  of  the  notes ;  but  the  defendant 
declined  taking  up  the  notes  and  giving  a  new  one  for  them. 

There  was  also  evidence  that  the  defendant  was  of  ability  to  pay  the 
notes,  but  no  evidence  of  any  new  consideration  for  his  promises  to  pay 
them. 

The  defendant,  upon  this  evidence,  contended,  that  the  first  described 
note  was  barred  by  the  Statute  of  Limitations ;  that  no  action  could  be 
maintained  on  the  notes,  or  on  the  defendant's  new  promises,  without 
showing  a  consideration  for  the  latter  ;  that  the  promise  of  the  defend- 
ant to  pay  the  notes,  made  subsequently  to  his  discharge  in  bank- 
ruptcy, if  available  at  all,  could  only  support  an  action  in  favor  of  the 
promisee,  and  did  not  revive  the  negotiable  quality  of  the  notes,  so  as 
to  entitle  a  subsequent  indorsee  to  maintain  an  action,  either  upon  the 
notes  or  upon  the  new  promise. 

But  the  presiding  judge  was  of  opinion,  that  the  ucticjii  t(juld  be 
maintained  upon  the  evidence,  and  directed  thu  jury  aecordiugly,  who 
returned  a  verdict  for  the  plaintiff,  whereupon  the  defendant  excepted. 

T.   Wentworth,  for  the  defendant. 

J.  G.  Abbott^  for  the  plaintiff. 

The  opinion  of  the  Court  was  delivered  at  tlie  October  Term,  1851. 

Metcalf,  J.  The  case  of  Bulger  v.  Roche,  11  Pick.  36,  is  a  de- 
cisive answer  to  the  defence  set  up  b}-  the  defendant,  under  the 
Statute  of  Limitations,  against  the  fii'st  note  specified  in  the  plaintiff's 
bill  of  particulars  ;  and  the  onl}'  other  point  to  be  decided  is,  whether 
the  defendant's  discharge  in  bankruptcy  is  a  defence  to  that  and  the 
two  other  notes  in  suit. 

The  plaintiff  relies  on  a  promise  made  to  the  payee  of  the  notes,  by 
the  defendant,  since  his  discharge.  And  it  is  well  settled,  that  a 
distinct  and  unequivocal  promise  to  pay  a  debt  so  discharged,  or  s 
promise  to  pa}'  it  on  a  condition  which  is  afterwards  fulfilled,  is  bind- 
ing on  the  promisor,  and  may  be  enforced  by  action.  Upon  these 
exceptions,  it  must  be  taken  that  a  binding  promise  b}'  the  defendant 
was  proved  at  the  trial.  No  new  consideration  was  necessary  to  the 
validity  of  the  promise  ;  Chit.  Con.  (oth  Amer.  ed.)  190  ;  Penn  v. 
Bennett,  4  Campb.  205  ;  and  no  statute  requires  it  to  be  in  writing. 

But  the  defendant  contends  that  if  he  is  bound  at  all  b}'  his  promise, 
he  is  bound  only  to  the  payee  of  the  notes,  to  whom  he  made  it,  and 
that  it  did  not  revive  or  restore  tht  legotiabiUty  of  the  notes.  And 
his  counsel  cited  Depuy  r.  Swart,  3  Wend.  135  ;  Moore  v.  Viele, 
4  "Wend.  420.  and  Walbridge  v.  Harroon,  18  Verm.  448,  where  it  waa 
^o  decided.  Since  the  argument,  a  similar  decision  of  the  court  of 
Maine  has  )>een  pubhshed.  White  v.  Gushing,  17  Shepley,  267.  The 
rrounds  of  these  decisions,  as  stated  in  the  report  of  the  first  of  theiu. 

TOL.  I.  —  23 


354  WAY   V.   SPERRY.  [CHAP.   I. 

were,  that  "the  new  promise  is  the  contract  upon  which  the  action 
must  rest;"  that  "the  new  promise  does  not  renew  the  old  contract, 
and  renovate  the  note  given  on  that  contract;  "  that  "the  existence 
of  the  note  is  destroyed  by  the  discharge,  and  cannot  l»e  revived  and 
restored  to  all  its  former  properties  b}'  the  maker's  entering  into  a  new 
contract,  by  which  he  becomes  liable  to  pay  what  was  due  on  the  old 
contract ; "  and  that  "  the  defendant's  liability,  therefore,  is  on  the 
new  contract,  and  that  the  suit  should  be  in  the  name  of  him  with 
whom  such  contract  is  made." 

We  are  not  satisfied  with  these  grounds  of  decision.  For  we  take  il 
to  be  well  established  that,  in  actions  brought  on  promises  made  by 
infants,  and  ratified  after  they  come  of  age  ;  on  promises  which  have 
been  renewed  after  the  Statute  of  Limitations  has  furnished  a  bar ;  and 
on  unconditional  promises  by  discharged  insolvent  debtors  and  bank- 
rupts, to  pay  debts  from  which  they  have  been  discharged,  the  plaintiff 
may  declare  on  the  original  promise  ;  and  that  when  infancjs  the 
Statute  of  Limitations,  or  a  discharge  in  insolvency  or  bankruptcy,  is 
pleaded  or  given  in  evidence,  as  a  defence,  the  new  promise  may  be 
replied  or  given  in  evidence,  in  support  of  the  promise  declared  on ; 
that  a  replication,  alleging  such  new  promise,  is  not  a  departure,  and 
that  evidence  thereof  is  not  irrelevant.  And  we  do  not  hold  that  a 
note,  promise,  or  debt,  is  "destroyed"  by  a  discharge  in  bankruptcy. 
If  it  were,  it  not  onty  could  not  be  renewed  or  revived,  but  it  could 
not  be  a  consideration  for  a  new  promise.  Yet  nothing  is  clearer,  on 
authority',  than  that  the  old  debt  is  a  sufficient  consideration  for  such 
promise.  In  all  the  cases  above  mentioned,  the  new  promise  operates 
as  a  waiver,  by  the  promisor,  of  a  defence  with  which  the  law  has 
f\u-nished  him  against  an  action  on  the  old  promise  or  demand. 
Maxim  v.  Morse,  8  Mass.  127  ;  Foster  v.  Valentine,  1  Met.  522,  523. 

AVe  cannot  perceive  any  legal  difference,  as  to  the  point  now  in 
question,  between  the  case  of  a  debt  that  has  been  discharged  by  a 
process  in  bankruptc}',  and  a  claim  voidable  on  the  ground  of  infancy, 
or  barred  by  the  vStatute  of  Limitations.  In  the  latter  case,  it  has  been 
decided  that  a  new  promise  removes  the  statute  bar,  but  does  not 
create  a  new  and  substantive  cause  of  action  which  is  the  basis  of  a 
judgment ;  and  that  the  judgment  must  be  considered  as  rendered  on 
the  old  contract.  Ilsley  v.  Jewett,  3  Met.  439.  And  where  an  infant 
gave  a  negotiable  note,  which  he  ratified  by  a  new  promise  after  he 
was  of  age,  it  was  decided  that  he  was  liable  on  it  to  an  indorsee  to 
whom  the  payee  negotiated  it  after  the  ratification.  The  Court  said 
the  ratification  gave  the  contract  "the  same  effect  as  if  the  promisor 
had  been  of  legal  capacity  to  make  the  note  when  he  made  it.  This 
made  it  a  good  negotiable  note  from  that  time,  according  to  its  tenor ; 
of  course,  when  transferred  to  the  plaintiff,  he  took  it  as  a  negotiable 
note,  and  ma}'  maintain  an  action  on  it."  Reed  v.  Batchelder,  1  Met. 
559.  And  the  indorsement  of  a  note,  after  a  new  promise  to  the  pa3'ee 
has  taken  it  out  of  the  Statute  of  Limitations,  enables  the  indorsee  to 


SECT.    11.]  STATE   TRUST   CO.    V.    SHELDOK.  355 

sue  the  maker.  Little  ik  Blunt,  9  Pick.  488,  and  16  Pick.  359.  The 
same  rule  is  applicable  to  the  case  at  bar.  A  new  promise  made  to 
the  payee  of  a  negotiable  note  is  a  promise  to  pay  him  or  order,  or 
bearer,  according  to  its  tenor.  Exceptions  overruled.^ 


STATE   TRUST    COMPANY  v.    JOHN    A.    SHELDON    et  als, 
Vermokt  Supreme  Court,  October  Term,   1895. 

[Reported  in  68  Vermont,  259.] 

Thompson,  J.  As  a  part  of  the  promises  and  undertaking  in  the 
declaration  mentioned,  and  at  the  time  of  making  the  same,  the  de- 
fendants agreed  in  writing  to  waive  the  Statute  of  Limitations  in 
respect  to  such  promises  and  undertaking.  Relying  upon  this  agree- 
ment the  plaintiff  did  not  bring  its  action  until  more  than  six  years 
from  the  time  that  it  accrued.  The  question  presented  by  the  plead- 
ings is  whether  the  defendants  are  estopped  by  the  agreement  from 
pleading  the  Statute  of  Limitations  in  bar  of  plaintiff's  action. 

It  is  urgedLthalJjbe  agreement  to  waive  the  statute  js^^id  because 
by  private  agreement^t_seeka  toa,Yoid_jL-fitatute^ .  and  Jis  againgl. 
puinic  policy. 

The  generaL  rule  is,  that  no  contract  or  agreement  can  modify  a 
law,  but  the  exception  is,  that  where  no  principle  or  public  policy  is 
violated,  parties  are  at  liberty  to  forego  the  protection  of  the  law. 
Statutory  provisions  designed  for  the  benefit  of  individuals  may  be 
waived,  but  where  the  enactment  is  to  secure  general  objects  of  policy 
or  morals,  no  consent  will  render  a  non-compliance  with  the  statute 
effectual.  The  statute  limiting  the  time  within  which  actions  shall 
be  brought  is  for  the  benefit  and  repose  of  individuals  and  not  to 
secure  general  objects  of  policy  or  morals.  Its  protection  may, 
therefore,  be  waived  in  legal  form  by  those  who  are  entitled  to  it, 
and  such  waiver,  when  acted  upon,  becomes  an  estoppel  to  plead  the 
statute.  Sedgw.  Stat,  and  Const.  Law  (2d  ed.),  86-87;  Quick  v. 
Corliss,  39  N.  J.  L.  11;  Burton  v.  Stevens,  24  Vt.  131;  Gay  v.  Has- 
8om,  64  Vt.  495;  Random  v.  Tobey,  11  How.  (U.  S.  493).  When 
such  waiver  is  made  it  is  continuous,  unless  by  its  terms  it  is  limited 
to  a  specified  time.  There  was  no  such  limitation  in  the  waiver  of 
the  defendants.  "We,  therefore,  hold  that  they  are  estopped  from  the 
pleading  the  statute  of  limitations  in  bar  of  plaintiff's  actions. 

Judgment  affirmed  and  cause  remanded  for  assessment  of  damages.^ 

1  Bird  I'.  Adams,  7  Ga.  50.5  ;  Sonlden  v.  Van  Rensselaer,  9  Wend.  293  ;  Clark  x\ 
Atkinson,  2  E.  D.  Smith,  112,  ncc.  ;  Thompson  v.  Gilreath,  3  Jones  L.  493,  contra. 

2  As  to  the  time  when  a  new  promise  must  be  made  to  be  effectual,  see  19  Am.  & 
Eng.  Encyc.  of  Law  (2d  ed.),  318. 


356  ARMSTKONG   V.   LEVAN.  [CHAP.   !< 

ARMSTRONG  v.    LEVAN. 
Pennsylvania  Supreme  Court,  March  2,   1886. 

[Reported  in  109  Pennsijlvania,  177.] 

Mr.  Justice  Paxson  delivered  the  opinion  of  the  court,  October  5, 

1885. 

The  defendant  below  was  sued  for  breach  ol  official  duty  as  pro- 
thonotary  in  not  properly  entering  a  judgment,  by  means  whereof  its 
lien  was  postponed  and  the  plaintiff  suffered  a  loss. 

The  defendant  pleaded  the  general  issue  and  the  Statute  of  Limita- 
tions. To  meet  the  plea  of  the  statute  the  plaintiff  called  a  witness, 
who  testified  as  follows:  "After  I  discovered  that  there  was  no  judg- 
ment in  favor  of  Hannah  Levan  against  Enoch  Rohrbach,  but  there 
was  one  against  Enoch  Rothenberger,  which  I  knew  from  the  number 
to  be  meant  as  the  one  against  Rohrbach,  I  went  to  see  Mr.  Arm- 
strong in  reference  to  the  matter.  I  said  to  him  that  he  had  made 
this  mistake,  or  if  not  he,  his  clerk,  and  that  unless  this  matter  was 
fixed  up,  I  would  be  obliged  to  sue.  He  then  made  the  remark  that 
he  would  have  to  see  his  lawyer  first,  Mr.  Reber.  On  the  afternoon 
of  the  same  day,  I  think  it  was,  he  came  to  my  office,  alone  that  time, 
and  he  said  that  I  should  see  Mr.  Reber;  and  I  said  to  him  again 
what  I  said  in  the  morning  in  reference  to  suing.  He  said  that  I 
should  not  sue;  that  if  Mrs.  Levan  suffered  any  loss  by  reason  of 
this  mistake,  he  would  make  it  good  to  her;  that  she  should  not  lose 
anything  through  his  mistake.  That  was  in  the  spring  of  1879,  I 
think  during  the  first  days  of  April." 

The  court  below  held  that  this  evidence,  if  believed  by  the  jury, 
was  sufficient  to  bar  the  running  of  the  statute;  and  that  the  six  years 
would  only  commence  to  run  from  the  date  of  such  promise. 

The  plaintiff  in  error  has  given  us  an  elaborate  argument  to  show 
that  a  promise  to  pay  after  the  statute  has  run  will  not  revive  a  tort, 
and  has  cited  numerous  authorities  in  support  of  this  proposition. 
We  concede  his  law  to  be  sound;  his  authorities  fully  sustain  his 
point. ^  The  difficulty  in  his  way  is  they  do  not  meet  his  case.  It 
was  not  the  question  of  the  revival  of  a  tort  by  a  promise  to  pay 
made  after  six  years.  The  conversation  referred  to  occurred  before 
the  statute  had  run,  and  it  was  a  distinct  promise  to  pay  in  considera- 
tion that  the  plaintiff  below  would  not  sue.  If,  therefore,  she  relied 
upon  this  promise;  if  she  was  thereby  lulled  into  security,  and  thus 

1  See  Wood  on  Limitations  (3d  ed.),  §  66.  A  new  promise  can  only  revive  from 
the  bar  of  the  Statute  of  Limitations  a  right  of  action  in  assumpsit,  ibid.  Indeed, 
according  to  the  English  authorities  only  a  right  of  action  in  general  or  indebitatus 
assumpsit.  Darley  &  Bosanquet's  Statutes  of  Limitations  {'id  ed. ),  105.  See  Wetzell  ». 
Bussard,  11  Wheat.  309,  316. 


SECT.   II.]  GILLINGHAil  V.   BROWN.  357 

allowed  the  six  years  to  go  by  before  she  commenced  her  suit,  with 
what  grace  can  the  defendant  now  set  up  the  statute?  The  promise 
operated  net  to  revive  a  dead  tort,  but  as  by  way  of  estoppel.  It 
has  all  the  elements  of  an  estoppel.  The  plaintiff  relied  and  acted 
upon  it;  she  has  been  misled  to  her  injury;  but  for  the  defendant's 
promise  she  would  have  commenced  her  action  before  the  six  years 
had  expired.  We  think  the  learned  judge  below  was  right  in  hold- 
ing that  the  six  years  would  only  commence  to  ruu  from  the  date  of 
the  promise. 

The  defendant's  fourth  point  called  upon  the  court  to  instruct  the 
jury  that  under  the  pleadings  and  the  evidence  in  this  case  the  ver- 
dict should  be  for  the  defendant.  This  the  court  declined  to  do. 
It  was  urged  in  support  of  this  point  that  the  record  testimony 
established  the  fact  that  the  plaintiff's  judgment  was  properly  en- 
tered in  the  judgment  docket  although  erroneously  indexed  in  the 
judgment  index;  and  that  the  subsequent  Singmaster  judgment,  there- 
fore, acquired  no  prior  lien,  notwithstanding  the  finding  and  decision 
of  the  auditor. 

This  is  to  ask  us  to  overrule  the  auditor  and  court  below  upon  the 
question  of  distribution,  arising  in  another  and  distinct  proceeding. 
We  find  no  trace  in  this  record  that  any  such  question  was  made  in 
the  court  below.  The  learned  judge  makes  no  reference  to  it,  and 
no  such  specific  point  was  put  to  the  court.  That  question  has  been 
settled  by  a  court  of  competent  jurisdiction,  and  it  shows  that  the 
plaintiff  has  lost  a  portion  of  her  money  by  reason  of  the  defendant's 
mistake.     This  is  suflScient  to  entitle  her  to  recover. 

Judgment  affirmed. 

Mercur,  C.  J.,  and  Gordon,  J.,  dissented.^ 


THOMAS   C.   GILLINGHAM   v.   THOMAS   W.  BROWN. 

SuPREivrE  Judicial  Court  of  Massachusetts,   November  14,    1900- 

April  3,   1901. 

[Reported  in  178  Massachitnelts,  417.] 

Hammond,  J.  This  is  an  action  upon  a  demand  note  dated  October 
22,  1872.  At  the  trial,  the  plaintiff,  in  order  to  meet  the  defence  of 
the  Statute  of  Limitations,  proved  that  the  defendant  delivered  to 
the  agent  of  the  plaintiff  in  April,  1898,  $5;  and  the  chief  question 
was  whether  this  money  was  delivered  in  part  payment  of  the  note, 
and,  if  so,  whether  under  the  circumstances  it  had  the  effect  of  mak- 

1  Renackowsky  v.  Board  of  Water  Commissioners,  122  Mich.  613,  ace.  See  farther, 
19  Am.  &  Eng.  Encyc.  of  Law  (2d  ed.),  288. 


858  GILLINGHAM   V.   BROWN.  [CHAP.    I. 

ing  the  defendant  liable  to  pay  the  remainder  of  the  note  at  once,  or 
only  by  instalments. 

The  plaintiff's  evidence  tended  to  show  that  in  February,  1898,  the 
defendant  orally  agreed  to  pay  the  note  in  monthly  instalments  of 
$10  each,  the  first  instalment  to  be  paid  on  the  first  of  the  following 
month;  that,  the  defendant  failing  to  pay  as  promised,  the  plaintiff's 
sister  as  his  agent  called  upon  the  defendant  and  demanded  payment 
"of  the  ten  dollars,"  or  a  payment  "on  account  of  the  note";  that 
the  defendant  said  he  could  not  pay  $10,  but  would  pay  her  $5,  and 
did  so,  and  the  payment  was  indorsed  on  the  note. 

The  defendant  admitted  giving  the  agent  the  $5,  but  testified  that 
"it  was  an  act  of  charity"  and  that  it  was  done  "to  get  rid  of  her," 
and  that  in  giving  it  he  stated  that  it  was  not  on  account  of  the  note; 
and  he  denied  that  he  ever  agreed  to  pay  in  monthly  instalments. 

In  this  state  of  the  evidence  the  defendant  asked  the  court  to  rule 
that  if  the  jury  should  find  that  the  defendant  agreed  to  pay  the  note 
only  in  instalments  of  $10  per  mouth,  and  that  the  payment  of  the 
$5  was  given  and  taken  in  pursuance  thereof,  the  plaintiff  could  only 
recover  the  instalments  due  to  the  date  of  the  writ.  The  court  de- 
clined so  to  rule,  and  instructed  the  jury  in  substance  that  if  the 
defendant  made  this  payment  on  account  of  the  note  their  verdict 
should  be  for  the  plaintiff  for  the  amount  of  the  note  and  interest 
from  the  date  of  demand,  after  deducting  the  payments  indorsed  on 
the  note.  To  the  refusal  to  rule  as  above  requested  and  to  the  ruling 
given  the  defendant  excepted.  The  jury  found  for  the  plaintiff  in 
the  sum  of  $1,049.40. 

The  verdict  shows  that  the  jury  found  that  the  $5  was  paid  by  the 
defendant  on  account  of  the  note  and  not  as  an  act  of  charity  as  he 
contended.  But  it  does  not  settle  the  question  whether  it  was  paid 
in  pursuance  of  an  agreement  to  pay  on  instalments,  or  upon  the  note 
generally  without  reference  to  that  agreement;  and,  since  the  evi- 
dence would  warrant  a  finding  either  way  on  that  question,  it  is  plain 
that  if  it  was  material  it  should  have  been  submitted  to  the  jury. 

The  St.  21  Jac.  I.  c.  16,  in  which  first  appears  a  limitation  as  to 
the  time  of  bringing  personal  actions,  and  upon  which  are  modelled 
the  various  Statutes  of  Limitation  in  the  United  States,  expressly 
provides  that  all  such  actions  should  be  brought  within  the  times 
therein  prescribed ;  and  it  makes  no  mention  of  the  effect  of  a  new 
promise,  acknowledgment  or  part  payment.  In  every  form  of  action 
but  that  of  assumpsit,  the  construction  has  been  in  unison  with  the 
express  words  of  the  statute,  but,  as  to  that  action,  the  statute  has 
had  a  varied  experience  in  running  the  gauntlet  of  judicial  exposi- 
tion. There  was  early  read  into  it  a  provision  that  in  an  action  of 
assumpsit  a  promise  of  payment  within  six  years  prior  to  the  action 
would  avoid  the  statute,  but  that  a  confession,  or  simple  acknowledg- 
ment by  the  debtor  that  he  owed  the  debt  would  not  be  sufficient. 
Dickson  v.  Thomson,  2  Show.  126.     At  a  later  period,  however,  it 


SECT.    II  ]  GILLINGHAM   V.    BROWN.  359 

was  held  that  an  acknowledgment  was  evidence  from  which  a  jury 
might  properly  find  a  new  promise  to  pay.  Heyling  v.  Hastings, 
1  Ld.  Raym.  421;  S.  C.  Comyns,  54,  Still  later,  Lord  Mansfield 
said  in  Quantock  v.  England,  Burr.  2628,  that  the  statute  did  not 
destroy  the  debt,  but  only  took  away  the  remedy;  and  that  if  the 
debt  be  older  than  the  time  limited  for  bringing  the  action  the  debtor 
may  waive  this  advantage,  and  in  honesty  he  ought  not  to  defend 
by  such  a  plea,  "and  the  slightest  word  of  acknowledgment  will  take 
it  out  of  the  statute."  In  Tanner  v.  Smart,  6  B.  &  C.  603,  however, 
the  pendulum  swung  the  other  way,  and  Lord  Tenterden,  C.  J., 
after  saying  that  there  were  undoubtedly  authorities  to  the  effect  that 
the  statute  is  founded  on  a  presumption  of  payment,  that  whatever 
repels  that  presumption  is  an  answer  to  the  statute,  that  any  ac- 
knowledgment which  repels  that  presumption  is  in  legal  effect  a 
promise  to  pay  the  debt,  and  that,  though  such  acknowledgment  is 
accompanied  with  only  a  conditional  promise  or  even  a  refusal  to 
pay,  the  law  considers  the  condition  or  refusal  void,  and  the  ac- 
knowledgment itself  an  unconditional  answer  to  the  statute,  proceeds 
in  an  able  opinion  to  say  in  substance  that  these  cases  are  unsatis- 
factory and  in  conflict  with  some  others,  and  that  the  true  doctrine  is 
that  an  acknowledgment  can  be  an  answer  to  the  statute  only  upon 
the  ground  that  it  is  an  evidence  of  a  new  promise,  and  that,  while, 
upon  a  general  acknowledgment,  where  nothing  is  said  to  prevent  it, 
a  general  promise  to  pay  may  and  ought  to  be  implied,  yet,  where 
a  debtor  guards  his  acknowledgment  and  accompanies  it  with  a  dec- 
laration to  prevent  any  such  implication,  a  promise  to  pay  could  not 
be  raised  by  implication.  This  is  a  leading  case  in  England  on  this 
subject. 

J^l-iMSv£2HBi£2>,^^.^5£/^JlTy  ge^6xally  been  held  that  the  Statute  of 

Lijmtations   is  ji^  wise  andujeneficial  "Taw,   not  designedn}6rely  to^ 
raise^  a  presumption  of  paymenir^oT3^JusF"crel3t^rom  1^        of  time^ 
Sut  to  afford  security  against  stale  demands  after  the  true  state  of  __ 
things  rna}'  have  been  forgotten^  or  may  be  incapable  of  explanation 
by  reason _o_f  the  loss  of  evidence,  that  if  a  new  express  promise  be 
SQt  up  in  answer  to  the  statute,  its  terms  ought  to  be  clearly  provedj'H 
aiid-that,  if  there  be  no  express  promise,  but  a  promise  is  to  be  raised 
iojaw.from  the  acknowledgment  of  the  debtor,  such  an  acknowledge" 
ment  ought  to  contain  ah  unqualified  admission  of  a  previous  subsist- 
ing debt  for  which  the  party  is  liable  and  which  he  is  willing  to  pay. 
It__fQliows  that  if  th.e  acknowledgment  be  accompanied  by  circum- 
stances,  or  words,  which  repel  the  idea  of  an  intention" to  pay,  no^ 
promise  can   be   implied.  _^  Bell   v.   Morrison,   1   Pet.  351;  Jones  v. 
Moore,   5   Binn.  573;    Berghaus  v.    Calhoun,    6  Watts,    219;    Sands 
V.    Gelston,    15   Johns.    511;    Danforth    v.    Culver,    11    Johns.    146; 
Purdy  V.  Austin,  3  Wend.  187.     In  this  last  case  the  court  say  that 
the  statute  is  one  of  repose  and  should  be  maintained  as  such;  that, 
while  the  unqualified  and  unconditional  acknowledgment  of  a  debt  is 


360  GILLINGHAM   V.   BROWN.  [CHAP.   I. 

adjudged  in  law  to  imply  a  promise  to  pay,  the  acknowledgment  of  the 
original  justice  of  the  claim  without  recognizing  its  present  existence 
is  not  sufficient;  and  that  anything  going  to  negative  a  promise  or 
intention  to  pay  must  be  regarded  as  qualif^-ing  the  language  used. 

This  doctrine  was  approved  by  this  court  in  the  leading  case  of 
Bangs  V.  Hall,  2  Pick.  3G8,  in  which  Putnam,  J.,  after  a  review  of 
the  authorities,  says:  "On  the  whole,  we  are  satisfied  that  there  must 
be  an  unqualified  acknowledgment,  not  only  that_..the  debt  was  just 
original] Yt  but  that  it  continues  to  be  so.  .  .  .  or  that  there  has 
b een  a  conditional  promise  which  has  been  performed,  as  is  before 
explairifid." 

To  answer  the  statute  there  must  be  a  promise  express  or  implied 
from  an  acknowledgment  of  the  debt  as  a  present  existing  debt.  If 
the  promise  whether  express  or  implied  be  conditional,  it  must  be 
shown  that  the  conditions  have  been  fulfilled.  Cambridge  v.  Hobart, 
10  Pick.  232;  Sigourney  v.  Drury,  14  Pick.  387;  Krebs  v.  01m- 
stead,  137  Mass.  504. 

While  the  original  debt  is  the  cause  of  action,  Ilsley  v.  Jewett, 
3  Met.  439,  the  liability  of  the  debtor  is  determined  not  by  the  terms 
of  the  old  but  by  those  of  the  new  promise.  As  stated  by  Vice 
Chancellor  Wigran  in  Phillips  v.  Phillips,  3  Hare,  281,  300,  "The 
new  promise,  and  not  the  old  debt,  is  the  measure  of  the  creditor's 
right.  ...  If  the  debtor  promises  to  pay  the  old  debt  when  he  is 
able,  or  by  instalments,  or  in  two  years,  or  out  of  a  particular  fund, 
the  creditor  can  claim  nothing  more  than  the  promise  gives  him." 
Custy  V.  Donlan,  159  Mass.  245;  Boynton  v.  Moulton,  159  Mass. 
248. 

Pub.  Sts.  c.  197,  §  15,  provides  that  no  acknowledgment  or  promise 
shall  be  evidence  of  a  new  or  continuing  contract  to  take  the  case  out 
of  the  operation  of  the  statute,  unless  contained  in  some  writing 
signed  by  the  debtor,  and  in  §  16,^  that  nothing  in  this  provision 
shall  be  taken  to  alter,  take  away  or  lessen  the  effect  of  a  part  pay- 
ment of  principal  or  interest;  and  it  may  be  contended  that  the 
effect  of  these  two  sections  is  to  exclude  all  parol  evidence  whatever 
bearing  upon  an  acknowledgment  or  new  promise  by  part  payment  or 
otherwise,  whether  the  creditor  be  attempting  to  avail  himself  of  it 
for  attack,  or  the  debtor  for  defence.  But  that  does  not  seem  to  us 
to  be  the  result.  The  language  is  that  the  provision  of  the  fifteenth 
section  shall  not  be  taken  to  alter,  take  away  or  lessen  the  effect  of 
part  payment.  But  what  was  the  effect  of  part  payment  before  this 
statute  requiring  the  promise  or  acknowledgment  to  be  in  writing? 
Its  effect  depended  upon  the  circumstances.  If  a  debtor  made  a  part 
payment  as  such,  it  was  considered  as  an  acknowledgment  that  the 
whole  debt  was  due,  otherwise  it  could  not  be  a  part  payment;  and 

1  As  to  the  statutes  requiring  a  writing  to  make  valid  a  new  promise  to  pay  a  debt 
barred  by  the  Statute  of  Limitations,  see  19  Am.  &  Eug.  Encyc.  of  Law  (2d  ed.),  320. 


SECT.    II.]  GILLINGHAM   V.    BROWN.  361 

SO  it  stood  upon  the  same  footing  as  any  other  unconditional  ac- 
knowledgment, and  from  it  tlie  law,  in  the  absence  of  anything  to 
the  contrary,  implied  a  promise  to  pay  the  whole.  It  had  no  validity 
to  answer  the  statute  except  as  an  acknowledgment  of  the  debt.  In 
the  language  of  Tindal,  C.  J.  in  Clark  v.  Hooper,  10  Bing.  480,  in 
the  mind  of  the  party  paying  such  a  payment  must  be  "a  direct 
acknowledgment  and  admission  of  the  debt,  and  is  the  same  thing 
in  effect  as  if  he  had  written  in  a  letter  to  a  third  person  that  he  still 
owed  the  sum  in  question." 

But  suppose  a  debtor  says  to  his  creditor  "I  acknowledge  the  debt 
to  be  just,  that  it  never  has  been  paid,  and  that  I  have  no  defence 
except  the  Statute  of  Limitations.  I  am  willing  to  pay  and  I  do 
hereby  pay  to  you  one-half  of  the  debt,  but  I  do  not  intend  to  waive 
the  statute  as  to  the  rest.  On  the  contrary  I  insist  on  my  defence 
as  to  that,  and  I  never  will  pay  any  more."  Can  it  be  said  that  from 
such  a  part  payment,  accompanied  by  such  a  distinct  affirmation  of 
the  debtor's  intention  not  to  pay  more  but  to  insist  upon  his  defence 
under  the  statute,  the  law  would  have  implied  a  promise  to  pay  the 
remaining  half? 

Again,  suppose  a  debtor  says  to  his  creditor,  "Your  claim  against 
me  is  just,  it  never  has  been  paid,  and  my  only  defence  to  it  is  the 
Statute  of  Limitations.  I  am  not  able  to  pay  it  now,  but  I  will  pay 
it  when  and  as  fast  as  I  am  able,  but  I  will  not  pay  in  any  other  way, 
and  I  insist  upon  my  defence  under  the  statute  except  so  far  as  I 
now  waive  it.  I  am  able  to  pay  and  I  do  now  pay  you  ten  dollars 
with  this  understanding."  Can  it  be  said  that  from  such  a  part  pay- 
ment the  law  would  have  implied  a  promise  to  pay  the  debt  according 
to  its  original  terms? 

To  come  a  little  more  closely  to  what  the  jury  might  have  found 
the  facts  to  be  in  this  case,  suppose  the  debtor  agrees  to  pay  in  in- 
stalments and  in  no  other  way,  and  clearly  declares  his  intention  to 
pay  in  no  other  way,  and  then  makes  a  payment  in  compliance  with 
the  new  promise.  Can  it  be  said  that  from  such  a  part  payment  the 
law  would  have  implied  a  promise  to  pay  the  debt  in  any  other  way  ? 
Such  an  interpretation  of  the  words  and  act  of  the  debtor  would  be 
inconsistent  with  the  understanding  of  both  parties,  and  would  be 
unreasonable  and  unjust. 

Such  a  partial  payment  as  that  named  in  either  of  the  three  cases 
above  supposed  must  be  construed  as  a  conditional  and  not  an  abso- 
lute waiver.  The  waiver  must  be  taken  as  it  is,  absolute  if  absolute, 
conditional  if  conditional.  And  on  principle  that  must  be  so, 
whether  it  be  found  in  a  verbal  promise  or  in  a  payment.  There  is 
no  ground  for  a  satisfactory  distinction  between  a  waiver  by  word 
and  a  waiver  by  an  act.  Each  is  evidence  of  a  new  promise  and 
operative  only  as  such;  and  while  the  cause  of  action  is  the  old 
promise,  the  measure  of  the  liability  is  determined  by  the  new  one. 

Now  it  is  expressly  declared  in  Pub.  Sts.  c.  197,  §  16,  that  the  pro- 


862  GILLINGHAM   V.   BROWN.  [CHAP.   I. 

visions  of  the  preceding  section  shall  not  be  taken  to  alter,  take  away 
or  lessen  the  effect  of  a  part  payment.  There  can  be  no  doubt  that 
prior  to  the  passage  of  the  law  contained  in  §  15  a  partial  payment 
made  in  pursuance  of  an  agreement  to  pay  by  instalments  did  not 
have  the  effect  of  making  the  debtor  liable  in  any  other  way.  To 
say  that  the  provisions  of  §  15  do  have  that  effect  is  to  alter  the  effect 
of  such  a  part  payment,  and  so  is  inconsistent  with  §  16.  The  law 
with  respect  to  part  payment  is  to  remain  as  before,  and  the  language 
accompanying  the  payment  is  admissible  to  show  the  intent  with 
which  the  payment  is  made,  just  as  it  was  admissible  before,  and  that 
is  so  whether  or  not  it  contains  a  promise  to  pay  upon  which  the 
creditor  could  have  maintained  an  action  prior  to  the  requirement 
that  it  should  be  in  writing. 

In  the  case  at  bar  there  was  evidence  tending  to  show  that  the 
defendant  had  orally  agreed  to  pay  in  monthly  instalments  of  $10 
each,  and  if  such  an  agreement  had  been  in  writing  it  could  have 
been  enforced  according  to  its  terms,  but  the  right  of  the  creditor  as 
against  a  plea  of  the  statute  would  have  been  measured  by  this  new 
promise ;  and,  even  if  the  debtor  had  failed  to  pay,  the  creditor  could 
recover  only  the  instalment  due  under  the  terms  of  the  agreement; 
and  that  would  be  so  even  if  the  defendant  had  made  several  of  the 
payments.  The  creditor  could  take  the  money  under  the  terms  which 
the  debtor  had  prescribed,  and  upon  no  other. 

And  by  the  reason  of  the  thing  the  same  principle  must  apply 
where  the  payment  is  made  upon  an  agreement  which,  not  being  in 
writing,  could  not  be  enforced.  If  this  $5  was  paid  in  part  perform- 
ance of  his  agreement  to  pay  by  instalments,  then  it  cannot  be  in- 
ferred that  he  intended  to  recognize  the  existence  of  the  old  debt  as 
an  actual  subsisting  obligation  in  any  other  way.  The  nature  of  the 
act  is  to  be  determined  by  the  intention  of  the  debtor  as  shown  by 
the  act,  his  words,  and  the  circumstances  accompanying  and  explain- 
ing it.  Taylor  /\  Foster,  132  Mass.  30;  Roscoe  v.  Hale,  7  Gray,  274. 
See  also  13  Am.  &  Eng.  Encyc.  of  Law,  750  et  seq.,  for  a  good  collec- 
tion of  the  cases. 

While  in  this  case  the  evidence  is  conflicting,  we  think  it  would 
warrant  a  finding  that  the  only  express  promise  made  by  the  defend- 
ant was  to  pay  in  monthly  instalments  of  $10  each,  and  that  he  paid 
the  65  solely  under  that  agreement.  If  that  was  so,  then  no  other 
promise  can  be  inferred  from  this  payment,  and  the  instruction  re- 
quested should  have  been  given. 

Exceptions  sustained. 


SECT.  I.]  STONE  V.   BALE.  363 


CHAPTER  II. 

FORMATION  OF  CONTRACTS  UNDER  SEAL. 


SECTION   I. 
C  FORMALITIES   OF    EXECUTION. 


TAUNTON   v.    PEPLER. 
In  Chancery,   1820. 

[Reported  in  6  Haddock,  166.] 

The  bill  was  filed  by  the  next  of  kin,  against  the  defendant,  as  ad- 
ministrator of  the  intestate,  for  an  account. 

The  defendant  pleaded  a  release. 

Mr.  Phillimore  objected  to  the  plea  of  the  release ;  first,  because  it 
was  founded  only  on  the  receipts  of  the  administrator,  as  they  then 
stood;  and,  secondly,  because  the  release  was  only  said  to  be  "sealed 
and  delivered,"  without  also  saying  "signed  ;  "  and  cited  Blackstone,^ 
who  says  a  deed^must  be  signed  as  well  as  sealed  and  delivered. 

Mr.  JS^oe^  contra. 

The  Vice-Chancellor.  The  release  states  that  the  administrator 
had  received  all  the  property  belonging  to  the  intestate;  I  cannot 
therefore  assume  that  he  has  received  anything  since.  There  is  no 
authority  for  saying  that  a  release,  to  be  effectual,  must  be  signed  aa 
well  as  sealed  and  delivered.  The  plea  must  be  allowed.^ 


STONE   V.    BALE. 
Common  Pleas,   1693. 

[Reported  in  3  Levinz,  348.] 

Debt  on  obligation,  and  jjeclares,  that  March  20,  34  Car.  2,  the 
defendant  by  obligation  dated  October  10,  33  Car.  2,  sed  jorimo 
deliberat'  20  March,  34  Car.  2,  became  bound,  etc.     The  defendant 

^  Blackstone's  Com.  305  ;  Blackstone's  words  are  :  "  It  is  requisite  that  the  party 
whose  deed  it  is  should  seal ;  and  now,  in  most  cases,  I  apprehend,  should  sign  it  also." 

2  Cromwell  v.  Grunsden,  2  Salk.  462 ;  Jeffery  v.  Underwood,  1  Ark,  108,  ace.  Sea 
also  Cooch  V.  Goodman,  2  Q.  B.  597 ;  Shepp.  Touch.  (Preston's  ed.),  56  b. 


364  WABEEN   V.   LYNCH.  [CHAP.    U. 

pleads,  that  upon  the  said  tenth  of  October,  when  the  obligation  bears 
date,  there  was  no  such  person  m  rerum  natiira  as  the  plaintiff.  To 
which  the  plaintiff  demurs :  and  now  upon  argument  it  was  adjudged 
by  the  whole  court  for  the  plaintiff:  they  agreed  where  the  plaintiff 
declares  on  a  date  he  cannot  afterward  reply  that  it  was  prima 
deliheraf  at  another  day ;  for  that  would  be  a  departure,  and  so  are 
the  books  to  be  intended,  Co.  2  Rep.  4  b,  and  1  H.  6,  1  b,  there  cited ; 
ioT  j^rima  facie  every  deed  is  supposed  to  be  made  the  same  day  that 
it  bears  date.  But  where  the  date  is  mistaken,  the  party  may  declare, 
or  in  his  first  plea  plead,  that  by  a  deed  bearing  date  such  a  day,  but 
prima  deliherat'  at  another  day,  the  party  granted,  or  became  bound, 
etc.  For  God  forbid,  when  a  deed  is  duly  made  that  by  negligence 
or  mistake  of  the  clerk  in  writing  the  date,  the  party  should  lose  the 
whole  benefit  of  the  deed,  and  be  without  remedy;  and  so  are  Dy. 
307  a,  315  a;  Cro.  Eliz.  773,  890;  5  H.  7,  27  a,  to  be  understood 
upon  this  difference.     Levinz  of  the  counsel  with  the  plaintiff.^ 


WARREN   V.    LYNCH. 
New  York  Supreme  Court  of  Judicature,  1810. 

[Rejiorted  in  5  Johnson,  239.] 

Kent,  C.  J.,  delivered  the  opinion  of  the  Court.  The  two  ques- 
tions made  upon  this  case  are:  1.  What  is  the  legal  import  of  the 
instrument  upon  which  the  suit  is  brought?  and,  2.  Was  the  evi- 
dence sufficient  to  entitle  the  plaintiff  to  recover?^ 

1.  The  note  was  given  in  Virginia,  and  by  the  laws  of  that  state 
it  was  a  sealed  instrument  or  deed.  But  it  was  made  payable  in 
New  York,  and  according  to  a  well-settled  rule,  it  is  to  be  tested  and 
governed  by  the  law  of  this  state.  4  Johns.  Rep.  285.  Independent 
then  of  the  written  agreement  of  the  parties  (and  on  the  operation  of 
which  some  doubt  might  possibly  arise),  this  paper  must  be  taken  to 
be  a  promissory  note,  without  seal,  as  contradistinguished  from  a 
speciality.  We  have  never  adopted  the  usage  prevailing  in  Virginia 
and  in  some  other  states,  of  submitting  a  scrawl  for  a  seal ;  and  what 

^  Osbouru  I'.  Eider,  Cro.  Jac.  135  ;  Cromwell  v.  Gruusden,  2  Ralk.  462 ;  Goddard's 
Case,  2  Coke,  4  6  ;  Hall  v.  Cazenove,  4  East,  477  ;  Thompson  t\  Thompson,  9  lud.  323  ; 
Lee  V.  Mass.  Ins.  Co.,  6  Mass.  208,  219  ;  Banning  v.  FAes,  6  Minn.  402  ;  Jackson  r. 
Schoonmaker,  2  Johns.  230  ;  Geiss  i\  Odenheimer,  4  Yeates,  278  ;  Swan  v.  Hodges, 
3  Head,  251  ;  McMichael  v.  Carlyle,  53  Wis.  504,  ace. 

But  the  execution  is  presumed  in  the  absence  of  evidence  to  the  contrary  to  have 
taken  place  on  the  day  a  deed  is  dated.  Oshey  v.  Hicks,  Cro  Jac.  264  ;  Savery  v. 
Browing,  18  la.  246  ;  Lyon  v.  Mcllvaine,  24  la.  9  ;  McConuell  v.  Brown,  Litt.  Sel.  Cas. 
459  ;  Bannmg  v.  Edes,  6  Minn.  402  ;  Colquhoun  v.  Atkinsons,  6  Munf.  550  ;  Raines 
V.  Walker,  77  Va.  92  ;  Wheeler  v.  Single,  62  Wis.  380.  See  also  Anderson  v,  Weston, 
6  Bing.  N.  C.  296. 

^  Only  so  much  of  the  opinion  as  relates  to  the  first  question  is  reprinted. 


SECT.   I.]  WABREN   V.   LYNCH.  365 

was  said  by  Mr.  Justice  Livingston,  in  the  case  of  Meridith  v.  Hins- 
dale (2  Caines,  362),  in  favor  of  such  a  substitute,  was  his  own 
opinion,  and  not  that  of  the  Court.  A  seal,  according  to  Lord  Coke 
(3  Inst.  169),  is  wax  with  an  impressioUo  Sigillum  est  cera  impressa, 
quia  cera  sine  impressione  7ion  est  sigillum.  A  scrawl  with  a  pen  is 
not  a  seal,  and  deserves  no  notice.  The  law  has  not  indeed  declared 
of  what  precise  materials  the  wax  shall  consist;  and  whether  it  be  a 
wafer  or  au}'  other  paste  or  matter  sufficiently  tenacious  to  adhere 
and  receive  an  impression,  is  perhaps  not  material.  But  the  scrawl 
has  no  one  properly  of  a  seal.  Multum  abludit  imago.  To  adopt  it 
as  such  would  be  at  ouce  to  abolish  the  immemorial  distinction  be- 
tween writings  sealed  and  writings  not  sealed.  Forms  will  fre- 
quently, and  especially  when  they  are  consecrated  by  time  and  usage, 
become  substance.  The  calling  a  paper  a  deed  will  not  make  it  one, 
if  it  want  the  requisite  formalities.  "Notwithstanding,"  says  Per- 
kins (sect.  129),  "that  words  obligatory  are  written  on  parchment  or 
paper,  and  the  obligator  delivereth  the  same  as  his  deed,  yet  if  it  be 
not  sealed,  at  the  time  of  the  delivery,  it  is  but  an  eserowl,  though 
the  name  of  the  obligator  be  subscribed."  I  am  aware  that  ingenious 
criticism  may  be  indulged  at  the  expense  of  this  and  of  many  of  our 
legal  usages ;  but  we  ought  to  require  evidence  of  some  positive  and 
serious  public  inconvenience,  before  we,  at  one  stroke,  annihilate  so 
well  established  and  venerable  a  practice  as  the  use  of  seals  in  the 
authentication  of  deeds.  The  object  in  requiring  seals,  as  I  humbly 
presume,  was  misapprehended  both  by  President  Pendleton,  and  by 
Mr.  Justice  Livingston.  It  was  not,  as  they  seem  to  suppose,  be- 
cause the  seal  helped  to  designate  the  party  who  affixed  it  to  his 
name.  Ista  ratio  7iuUius  pretii  (says  Viunius,  in  lust.  2,  10,  5)  nam  et 
alieno  annullo  signare  licet.  Seals  were  never  introduced  or  tolerated 
in  any  code  of  law,  because  of  any  family  impression,  or  image,  or 
initials  which  they  might  contain.  One  person  might  always  use 
another's  seal,  both  in  the  English  and  in  the  Roman  law.  The 
policy  of  the  rule  consists  in  giving  ceremony  and  solemnity  to  the 
execution  of  important  instruments,  by  means  of  which  the  atten- 
tion of  the  parties  is  more  certainly  and  effectually  fixed,  and  frauds 
less  likely  to  be  practised  upon  the  unwary.  President  Pendleton, 
in  the  case  of  Jones  and  Temple  v.  Logwood  (1  Wash.  Rep.  42), 
which  was  cited  upon  the  argument,  said  that  he  did  not  know  of  any 
adjudged  case  that  determines  that  a  seal  must  necessarily  be  some- 
thing impressed  on  wax;  and  he  seemed  to  think  that  there  was  noth- 
ing but  Lord  Coke's  opinion  to  govern  the  question.  He  certainly 
could  not  have  examined  this  point  with  his  usual  diligence.  The 
ancient  authorities  are  explicit,  that  a  seal  does,  in  legal  contempla- 
tion, mean  an  impression  upon  wax.  "It  is  not  requisite,"  according 
to  Perkins  (sect.  134),  "that  there  be  for  every  grantor  who  is  named 
in  the  deed  a  several  piece  of  wax,  for  one  piece  of  wax  may  serve 
for  all  the  grantors,  if  every  one  put  his  seal  upon  the  same  piece 
of   wax."     And  Brooke  (tit.  Faits,   30  and  17)  uses  the  same  Ian- 


366  WAEEEN   V.   LYNCH.  [CHAP.   n. 

guage.  In  Lightfoot  and  Butler's  case,  which  was  in  the  Exchequer, 
29  Elrz.  (2  Leon,  21)  the  Barons  were  equally  explicit,  as  to  the 
essence  of  a  seal,  though  they  did  not  all  concur  upon  the  point, 
as  stated  in  Perkins.  One  of  them  said  that  twenty  men  may  seal 
with  one  seal  upon  one  piece  of  wax  only,  and  that  should  serve  for 
them  all,  if  they  all  laid  their  hands  upon  the  seal ;.  but  the  other  two 
Barons  held  that  though  they  might  all  seal  a  deed  with  one  seal,  yet 
it  must  be  upon  several  pieces  of  wax.  Indeed  this  point,  that  the 
seal  was  an  impression  upon  wax,  seems  to  be  necessarily  assumed 
and  taken  for  granted  in  several  other  passages  which  might  be  cited 
from  Perkins  and  Brooke,  and  also  in  Mr.  Selden's  "Notes  to  For- 
tescue"  (De  Laud,  p.  72) ;  and  the  nature  of  a  seal  is  no  more  a  mat- 
ter of  doubt  in  the  old  English  law  than  it  is  that  a  deed  must  be 
written  upon  paper  or  parchment,  and  not  upon  wood  or  stone.  Nor 
has  the  common  law  ever  been  altered  in  Westminster  Hall,  upon  this 
subject;  for  in  the  late  case  of  Adam  v.  Keer  (1  Bos.  and  Puller, 
360),  it  was  made  a  question  whether  a  bond  executed  in  Jamaica, 
with  a  scrawl  of  the  pen,  according  to  the  custom  of  that  island,  should 
operate  as  such  in  England,  even  upon  the  strength  of  that  usage. 

The  civil  law  understood  the  distinction  and  solemnity  of  seals  as 
well  as  the  common  law  of  England.  Testaments  were  required  not 
only  to  be  subscribed,  but  to  be  sealed  by  the  witnesses.  Sub- 
scriptione  testium,  et  ex  eclicto  2^f<^toris,  signacula  testamentis  impone- 
rentur  (Inst.  2,  10,  3).  The  Romans  generally  used  a  ring,  but  the 
seal  was  valid  in  law,  if  made  with  one's  own  or  another's  ring;  and, 
according  to  Heineccius  (Elementa  juris  civilis  secundum  ord.  Inst. 
497),  with  any  other  instrument,  which  would  make  an  impression, 
and  this,  he  says,  is  the  law  to  this  day  throughout  Germany. 
And  let  me  add,  that  we  have  the  highest  and  purest  classical  au- 
thority for  Lord  Coke's  definition  of  a  seal;  Quid  si  in  ejus?}wdi  cera 
centum  sigilla  lioc  annulo  inipressero  ?  (Cicero,  Academ.  Quaest. 
Lucul.  4,  26). 

1  In  National  Provincial  Bank  v.  Jackson,  33  Ch.  D.  1,  11,  Cotton,  L.  J.,  said: 
"  Although  these  instruments  are  expressed  to  be  signed,  sealed,  and  delivered  in  the 
presence  of  the  attesting  witness,  who  was  one  of  R.  Jackson's  clerks,  there  is  no  trace 
of  any  seal,  but  merely  the  piece  of  ribbon  for  the  usual  purpose  of  keeping  the  wax 
on  the  parchment.  In  my  opinion  the  only  conclusion  we  can  come  to  is  that  these  in- 
struments were  never  in  fact  sealed  at  all.  They  were  somehow  or  other  prepared  by 
R.  Jackson,  but  never  in  fact  executed  by  him  in  such  a  way  as  to  reconvey  the  legal 
estate.  It  is  said,  and  said  truly,  that  neither  wax  nor  wafer  is  necessary  in  order  to 
constitute  a  seal  to  a  deed,  and  that  frequently,  as  in  the  case  of  a  corporation 
party  to  a  deed,  there  is  only  an  impression  on  the  paper ;  and  In  re  Sandilands, 
Law  Rep.  6  C.  P.  411  was  referred  to,  where  an  instrument  had  been  forwarded  from 
the  colonies  together  with  an  official  certificate  of  its  having  been  duly  acknowledged, 
and  this  was  recognized  by  the  Court  as  a  deed,  although  there  was  no  seal  but  only 
the  ribbon  on  it.  That  case  is  not  now  under  appeal,  but  it  is  evident  that  the  ques- 
tion was  merely  as  to  what  was  the  true  inference  of  fact,  and  although  perhaps,  hav- 
ing regard  to  the  certificate,  it  was  right  there  to  hold  that  the  deed  had  been  sealed, 
here  in  my  opinion  it  would  be  wrong  to  do  so.  It  is  true  that  if  the  finger  be  pressed 
upon  the  ribbon  that  may  amount  to  sealing,  but  no  such  inference  can  be  drawn  here 


SECT.    I.]  LORAH   V.   NISSLEY.  367 

LORAH,    Appellant,    v.    NISSLEY. 

Pennstlvania  Supreme    Court,   1893. 

[Reported  in  156  Pennsylvania,  329.] 

Rule  to  open  judgment  entered  on  note  alleged  to  be  under  seal. 
The  note  was  in  the  following  form : 

"  $200.00.  "  Mount  Jot,  Pa.,  August  the  22,  1881. 

"  Five  months  after  date  I  promise  to  pay  to  Jacob  E.  Lorah  or  order,  at 
the  First  National  Bank  of  Mount  Joy,  Two  Hundred  Dollars  and  without 
defalcation  or  stay  of  execution,  value  received.  And  I  do  hereby  confess 
judgment  for  the  said  sum,  costs  of  suit  and  release  of  all  errors,  waiving  in- 
quisition and  confess  condemnation  of  real  estate.  And  I  do  further  waive 
all  exemption  laws,  and  agree  that  the  same  may  be  levied  by  attachment 
upon  wages  for  labor  or  otherwise. 

"  Witness  :  Henry  B.  Xissley,         Seal. 

"  George  Shiers.  Seal." 

The  word  "seal"  following  the  signature  of  the  maker  was  printed. 
The  Court  held  that  the  note  was  not  under  seal,  and  made  absolute 
the  rule  to  open  the  judgment,  so  as  to  permit  defendant  to  plead 
the  statute  of  limitations,  in  an  opinion  by  McMullen,  J.,  1  Dist. 
R.  410. 

Error  assigned  was  above  order. 

A.  S.  Hershey  and  B.  F.  Davis,,  for  appellant. 

J.  Hay  Broivn,   W.  U.  Hensel  with  him,  for  appellee. 

Mr.  Justice  Mitchell.  The  days  of  actual  sealing  of  legal  docu- 
ments, in  its  original  sense  of  the  impression  of  an  individual  mark 
or  device  upon  wax  or  wafer,  or  even  on  the  parchment  or  paper 
itself,  have  long  gone  by.  It  is  immaterial  what  device  the  impres- 
sion bears,  Alexander  v.  Jameson,  5  Bin.  238,  and  the  sam_e  stamp 
may  serve  for  several  parties  in  the  same  deed.  Not  only  so,  but 
the  use  of  wax  has  almost  entirely  and  even  of  wafers  very  largely 
ceased.  In  short  sealing  has  become  constructive  rather  than  ac- 
tual, and  is  in  a  great  degree  a  matter  of  intention.  It  was  said 
more  than  a  century  ago  in  McDill's  Lessee  v.  McDill,  1  Dal.  63, 
that  "the  signing  of  a  deed  is  now  the  material  part  of  the  execution ; 
the  seal  has  become  a  mere  form,  and  a  written  or  ink  seal,  as  it  is 
called,  is  good;"  and  in  Long  v.  Ramsay,  1  S.  &  R.  72,  it  was  said 
by  Tilghman,  C.  J.,  that  a  seal  with  a  flourish  of  the  pen  "is  not  now 

where  the  attesting  witness  who  has  given  evidence  recollects  nothing  of  the  sort,  and 
when  Jackson  had  already  committed  one  fraud  in  the  matter  and  perhaps  then  in- 
tended another.  The  question  is  merely  one  of  fact,  and  upon  the  evidence  it  is  im- 
possihle  to  conclude  that  these  instruments  were  ever  executed  as  deeds  so  as  to 
reconvey  the  estate."  Lindley,  L.  J.,  in  the  same  case  said  :  "  In  re  Saudilauds  was,  I 
think,  a  good-natured  decision,  in  which  I  am  not  sure  that  I  could  have  concurred." 

American  decisions  sustaining  the  common-law  definition  of  a  seal  are  Rates  ?■.  Bo.*- 
ton.&c.  R.Co.,  10  Allen,  251  ;  Heudee  ?-.  Finkerton,  14  .Mien.."??  I  ;  I'errinor.  Chnesemnn, 
6  Halst.  174. 


308  LOKAH   V.    NISSLEY.  [CHAP.   H. 

to  be  questioned."  Any  kind  of  flourish  or  mark  will  be  sufficient  if 
it  be  intended  as  a  seal.  "The  usual  mode,"  said  Tilghman,  C.  J., 
in  Taylor  v.  Glaser,  2  S.  «fe  R.  502,  "is  to  make  a  circular,  oval,  or 
square  mark,  opposite  to  the  name  of  the  signer;  but  the  shape  is 
immaterial."  Accordingly  it  was  held  in  Hacker's  Appeal,  121  Pa. 
192,  that  a  single  horizontal  dash,  less  than  an  eighth  of  an  inch 
long,  was  a  sufficient  seal,  the  context  and  the  circumstances  show 
ing  that  it  was  so  intended.  On  the  other  hand  in  Taylor  v.  Glaser, 
supra,  a  flourish  was  held  not  a  seal,  because  it  was  put  under  and 
apparently  intended  merely  as  a  part  of  the  signature.  So  in  Duncan 
V.  Duncan,  1  Watts,  322,  a  ribbon  inserted  through  slits  in  the  parch- 
ment, and  thus  carefully  prepared  for  sealing,  was  held  not  a  seal, 
because  the  circumstances  indicated  the  intent  to  use  a  well-known 
mode  of  sealing,  by  attaching  the  ribbon  to  the  parchment  with  wax 
or  wafer,  and  the  intent  had  not  been  carried  out. 

These  decisions  establish  beyond  question  that  any  flourish  or  mark, 
however  irregular  or  inconsiderable,  will  be  a  good  seal,  if  so  in- 
tended, and  a  fortiori  the  same  result  must  be  produced  by  writing 
the  word  "seal,"  or  the  letters  "L.  S.,"  meaning  originally  locus  sigilli, 
but  now  having  acquired  the  popular  force  of  an  arbitrary  sign  for 
a  seal,  just  as  the  sign  "&"  is  held  and  used  to  mean  "and"  by 
thousands  who  do  not  recognize  it  as  the  Middle  Ages  manuscript 
contraction  for  the  Latin  "et. " 

If  therefore  the  word  "seal"  on  the  note  in  suit  had  been  written 
by  Nissley  after  his  name,  there  could  have  been  no  doubt  about  its 
efficacy  to  make  a  sealed  instrument.  Does  it  alter  the  case  any  that 
it  was  not  written  by  him,  but  printed  beforehand?  We  cannot  see 
any  good  reason  why  it  should.  RatiGcation  is  equivalent  to  ante- 
cedent authority,  and  the  writing  of  his  name  to  the  left  of  the  printed 
word,  so  as  to  bring  the  latter  into  the  usual  and  proper  place  for  a 
seal,  is  ample  evidence  that  he  adopted  the  act  of  the  printer  in  put- 
ting it  there  for  a  seal.  The  note  itself  was  a  printed  form  with 
blank  spaces  for  the  particulars  to  be  filled  in,  and  the  use  of  it 
raises  a  conclusive  presumption  that  all  parts  of  it  were  adopted  by 
the  signer,  except  such  as  were  clearly  struck  out  or  intended  to  be 
cancelled  before  signing.  The  pressure  of  business  life  and  the  sub- 
division of  labor  in  our  day,  have  brought  into  use  many  things 
ready-made  by  wholesale  which  our  ancestors  made  singly  for  each 
occasion,  and  among  others  the  conveniences  of  printed  blanks  for 
the  common  forms  of  written  instruments.  But  even  in  the  early 
days  of  the  century,  the  act  of  sealing  was  commonly  done  by  adop- 
tion and  ratification  rather  than  as  a  personal  act,  as  we  are  told  by 
a  very  learned  and  experienced,  though  eccentric  predecessor,  in  lan- 
guage that  is  worth  quoting  for  its  quaintness:  "7ZZi  rohur  et  aes 
triplex.  He  was  a  bold  fellow  who  first  in  these  colonies,  and  par- 
ticularly in  Pennsylvania,  in  time  whereof  the  memory  of  man  runneth 
not  to  the  contrary,  substituted  the  appearance  of  a  seal  by  the  cir- 
cumflex of  a  pen,  which  has  been  sanctioned  by  usage  and  the  ad- 


SECT.    I.]  LOKAH   V.   NISSLEY.  369 

judication  of  the  courts,  as  equipollent  with  a  stamp  containing  some 
effigies  or  inscription  on  stone  or  metal.  .  .  .  How  could  a  jury 
distinguish  the  hieroglyphic  or  circumflex  of  a  pen  by  one  man  from 
another?  In  fact  the  circumflex  is  usually  viade  by  the  scrivener 
drawing  the  instruyiient,  and  the  word  seal  inscribed  within  it." 
Brackenridge,  J.,  in  Alexander  v.  Jameson,   5  Bin.   238,   244. 

We  are  of  opinion  that  the  note  in  suit  was  duly  sealed. 

"We  have  not  derived  much  light  from  the  decisions  in  other  states, 
but  so  far  as  we  have  found  any  analogous  cases  they  are  in  harmony 
with  the  views  herein  expressed.  In  Whitney  v.  Davis,  1  Swan 
(Tenn,),  333,  the  word  "seal"  without  any  scroll,  was  held  to  be  a 
good  seal  even  to  a  public  deed  by  the  clerk  of  a  court,  he  stating  in 
the  certificate  that  no  seal  of  office  had  been  provided.  And  in  Lewis 
V.  Overby,  28  Gratt.  (Va.)  627,  the  word  "seal"  without  any  scroll 
was  held  a  good  seal  within  a  statute  enacting  that  "any  writing  to 
which  the  person  making  it  shall  affix  a  scroll  by  way  of  seal  shall 
be  of  the  same  force  as  if  it  were  actually  sealed." 

The  learned  Court  below,  and  the  counsel  for  appellee  placed  much 
reliance  on  the  decision  in  Bennett  v.  Allen,  10  Pa.  C.  C.  R.  256.  In 
that  case  the  signature  was  placed  to  the  left  but  below  the  printed 
letters  "L.  S.,"  and  it  is  said  in  the  opinion  that  there  was  a  space 
of  half  an  inch  between.  The  decision  might  possibly  be  sustained 
on  the  ground  that  the  position  and  distance  showed  that  the  signer 
did  not  intend  to  adopt  the  letters  "L.  S."  as  part  of  his  act,  but 
unless  distinguished  on  that  special  ground  the  decision  is  contrary 
to  the  settled  trend  of  our  cases,  and  cannot  be  approved. 

Order  opening  judgment  is  reversed  and  judgment  reinstated.^ 

1  Bertrand  v.  Byrd,  4  Ark.  195;  Hastings  v.  Vaughan,  5  Cal.  315;  Trasher  v. 
Everhart,  3  G.  &  J.  234 ;  Underwood  v.  Dollins,  47  Mo.  259 ;  Groner  v.  Smith,  49 
Mo.  318;  English  v.  Helms,  4  Tex.  228  ;  Green  v.  Lake,  2  Mackey,  162,  ace. 

In  many  other  states  statutes  have  enlarged  the  legal  conception  of  what  constitutes 
a  seal. 

Alabama,  Code  (1896),  §  1036.  An  instrument  purporting  to  be  under  seal  has  the 
same  effect  as  if  a  seal  were  affixed. 

California,  Civ.  Code,  §  193.  A  scroll  or  the  word  seal  after  the  signature  is 
sufficient. 

Coloriido,  Mills  Stat.  (1891),  §  440.     A  scroll  is  enough. 

Connecticut,  Gen.  Stat.  (1888),  §  1085.    The  word  seal  or  the  letters  L.  S.  are  sufficient. 

Georgia,  Code  (1895),  §  5.  A  scrawl  or  any  other  mark  intended  as  a  seal  shall  be 
held  as  such. 

Idaho,  Rev.  Stat.  (1887) ,  §§  13,  5989.  Impression  on  the  paper  is  enough,  or  a  scroll 
or  the  word  seal. 

Illinois,  Starr  &  Curtis  Stat.  (1895),  p.  904.  A  scrawl,  affixed  by  way  of  a  seal,  ha3 
the  same  effect  as  a  seal. 

Michigan,  Comp.  Laws  (1897),  §  9005.  A  scroll  or  device  used  as  a  seal  has  the 
same  effect  as  a  seal. 

Minnesota,  Stat.  (1894),  §  4190.     Like  Michigan. 

New  Jersey,  Gen.  Stat.  (1895),  p.  884,  §  154;  p.  1413.  §  72  ;  p.  2336,  §  1.  A  scroll 
or  other  device  is  sufficient. 

New  Mexico,  Comp.  Laws  (1897),  §  3932.     A  scroll  is  sufficient. 

New  York,  Birdseye's  Rev.  Stat.  (1896),  p.  2967,  §  13.  A  seal  shall  consist  of  a 
VOL.   I.  —  24 


370  AUSTIN   V.   WHITLOCK.  [CHAP.   U. 


ANONYMOUS. 

Common  Pleas,   1536. 

[Reported  in  1  Dyer,  19  a.] 

An  obligation  was  thus,  "for  the  well  and  faithful  payment  of 
which  I  bind  myself  by  these  presents,  dated,  &c.,"  and  not  said 
"sealed  with  my  seal,"  nor  "in  witness  whereof:"  wherefore  it  was 
asked  of  the  Court,  if  such  an  obligation  be  good  or  not?  And  it 
seemed  to  Shelley  and  Fitzherbert,  that  the  obligation  is  well 
enough,  if  a  seal  be  put  to  the  deed,  etc.^ 


AUSTIN'S   Administratrix  v.    WHITLOCK'S   Executors. 

Supreme  Court  of  Appeals  of  Virginia,  1810. 

[Reported  in  1  Munf.  487.] 

To  an  action  of  covenant  the  defendants,  without  craving  oyer, 
pleaded  conditions  performed,  and  issue  was  joined.  At  the  trial 
the  plaintiff  produced  a  writing  which  concluded  "As  witness  my 

wafer,  wax,  or  other  similar  adhesive  substance  or  of  paper  or  other  similar  substance, 
aflBxed  thereto  by  mucilage  or  other  adhesive  substance,  or  of  the  word  seal  or  the 
letters  L.  S.  opposite  the  signature. 

Oregon,  Hill's  Annot.  Laws,  §  752.  Impression,  wafer,  wax,  paper,  scroll,  or  other 
sign  made  with  a  pen,  constitutes  a  seal. 

Rhode  Island,  General  Laws  (1896),  c.  26,  §  14.     An  impression  is  suiEcient. 

South  Dakota,  Amiot.  Stat.  (1901),  §  5963.     Like  Rhode  Island. 

Utah,  Comp.  Laws  (1888),  §§  2645,  2994,  3903.  A  scroll,  printed  or  written,  or  the 
word  seal  is  sufficient. 

Virginia,  Code  (1887),  §§  5  (12),  2841.     A  scroll  is  sufficient. 

West  Virginia,  Code  (1899),  c.  13,  §  15.     A  scroll  written  or  printed  is  sufficient. 

Wisconsin,  Annot.  Stat.  (1889),  §  2215.     A  .scroll  or  device  as  a  seal  is  sufficient. 

1  "  For  there  are  bnt  three  things  of  the  essence  and  substance  of  a  deed  ;  that  is 
to  say  writing  in  paper  or  parchment,  sealing,  and  delivery,  and  if  it  hath  these  three, 
although  it  wanted,  in  cujits  rei  testimonium  sigillum  snum  apposuit,  yet  the  deed  is 
sufficient,  for  the  delivery  is  as  necessary  to  the  essence  of  a  deed,  as  the  putting  of 
the  seal  to  it,  and  yet  it  need  not  be  contained  in  the  deed  that  it  was  delivered." 
Goddard's  Case,  2  Coke,  4  6,  5  a.  Bedow's  Case,  1  Leon.  25 ;  Peters  v.  Field,  Hetly, 
75  ;  Thompson  v.  Butcher,  3  Bulstr.  300,  302  (but  see  Clement  v.  Guuhouse,  5  Esp. 
83)  ;  Burton  v.  LeRoy,  5  Sawy.  510;  Jeffery  v.  Underwood,  1  Ark.  108;  Bertrand  v. 
Byrd,  4  Ark.  195;  Cummins  i".  Woodruff,  5  Ark.  116;  Conine  v.  Junction  R.  Co., 
3  Houst.  288  ;  Fames  v.  Preston,  20  111.  389  ;  Hubbard  v.  Beckwith,  1  Bibb,  492 ;  Wing 
V.  Chase,  35  Me.  260;  Trasher  i'.  Everhart,  3  G.  &  J.  234,  246;  Mill  Dam  Foundry  v. 
Hovey,  21  Pick.  417,  428.  Sticknoth's  Est.,  7  Nev.  223,  2.34  ;  Ingram  v.  Hall,  1  Hayw. 
193.  209  ;  O-sborn  v.  Kistler,  35  Ohio  St.  99  ;  Taylor  v.  Gla.'^er,  2  S.  &  R.  502  ;  Frevali 
t'.  Fitch,  5  Whart.  325 ;  Biery  r.  Haines,  5  Whart.  563  ;  Hopkins  v.  Cumberland  R. 
Co.,  3  W.  &  S.  410;  Lorah  v.  Nissley,  156  Pa.  329  ;  Relph  v.  Gist.  4  McCord.  267  ; 
McKain  v.  Miller,  1  McMull,  313;  Scruggs  v.  Brackin,  4  Yerg.  528,  ace.  See  also 
McRaven  v.  McGuire,  17  Miss.  34;  Hudson  v.  Poindexter,  42  Miss.  304. 


SECT.   I.]  AUSTIN   V.   WHITLOCK.  371 

hand  this  22d  day  of  February,  1791.  D.  Whitlock,"  with  a  written 
scroll  annexed  to  the  signature.  The  defendants  moved  the  Court 
to  exclude  this  evidence,  but  the  Court  overruled  the  motion  and  a 
verdict  and  judgment  for  the  plaintiff  followed.  On  appeal  the  judg- 
ment was  reversed,  whereupon  the  plaintiff  appealed  to  this  Court. 

Peyton  Randolph,  for  the  appellant. 

Wlckham,  contra. 

Judge  Tucker,  after  stating  the  case.  That  a  covenant  is  a  deed, 
and  that  a  seal  is  one  of  the  essential  parts  of  a  deed,  is  evident  from 
the  authorities  generally,  and  especially  Co.  Litt.  6  a,  35  b,  175  b, 
225  a  and  b,  229  b.,  and  Litt.  s.  371,  372.  From  several  of  which, 
and  particularly  the  two  last,  it  is  apparent  that  the  clause  of  in  cujus 
rei  testimonium  ought  to  recite  that  the  maker  of  the  deed  hath  there- 
unto put  his  seal  for,  otherwise,  a  supposititious  seal  may  be  affixed 
to  any  instrument  of  writing,  without  proof  of  the  acknowledgment 
thereof  by  the  maker  of  the  instrument,  and  a  mere  parol  promise  or 
agreement  may  be  converted  into  a  covenant,  which  is  an  instrument 
of  a  much  higher  nature;  insomuch,  that  what  might  be  considered 
as  mere  nudum  pactum,  as  in  the  case  of  Hite,  Ex'r  of  Smith,  v. 
Fielding  Lewis's  Ex'rs,  in  this  Court,  October  29,  1804  (MS.)  may, 
by  the  subsequent  addition  of  a  seal  or  scroll,  be  converted  into  an 
obligation  which  should  not  only  bind  the  maker  and  his  executors, 
but  his  heirs  also.  For  such  would  have  been  the  effect  of  the  writ- 
ing signed  by  Fielding  Lewis,  in  that  case,  "whereby  he  obliged 
himself,  his  heirs,  executors,  and  administrators  to  indemnify  Mrs. 
Smith,"  as  executrix  of  Charles  Smith,  for  the  latter  having  become 
security  for  his  son,  if  there  had  been  a  seal,  or  scroll,  added  to  that 
instrument,  and  acknowledged  by  the  maker,  in  the  clause  of  attesta- 
tion. But  if  such  mention  be  unnecessary  in  the  body  of  the  instru- 
ment, how  easily  may  any  instrument  of  the  same  kind  be  converted 
into  one  very  different  from  it?  The  omission  of  the  word  "seal "  in 
the  clause  of  attestation,  according  to  the  maxim  of  law,  ''^ea:p7'essum 
facit  cessare  taciturn,"  does,  in  my  opinion,  preclude  all  evidence, 
dehors  the  instrument,  of  the  execution  of  it  in  any  other  manner 
than  is  expressed  in  the  body  of  the  instrument.  One  of  the  reasons 
which  are  given  why  a  deed  must  be  pleaded  with  a  p>^'^f^'^i  *^  curia 
is,  that  the  deed  must  be  brought  into  court  for  the  purpose  of  in- 
spection; and  if  (as  is  said  in  10  Co.  92  b)  the  judges  found  that  it 
had  been  raised  or  interlined  in  any  material  part,  they  adjudged  it 
to  be  void.  Now,  suppose  the  word  seal  had  been  found  interlined 
in  such  an  instrument  as  this,  and  no  notice  taken  by  the  witnesses 
that  such  an  interlineation  had  been  made  before  the  execution 
thereof,  and  nothing  farther  said  about  the  seal;  would  not  this  have 
avoided  the  deed?  I  presume  it  would.  So  deeds,  in  which  were 
erasures,  have  been  held  void,  because  they  appeared,  on  the  face  of 
them,  to  be  suspicious.  Now  what  can  be  more  suspicious  than  the 
apparent  addition  of  a  seal  to  an  instrument,  which  the  maker  ac- 


372  EAMES   V.   PRESTON.  [CHAP.   n. 

knowledges  under  this  hand  only?  Judge  Bnller,  in  the  case  of 
Master  v.  Miller,  4  Term  Rep.  339,  speaking  on  the  subject,  says, 
"When  there  is  a  profert  of  a  deed,  the  deed  or  the  profert  must  agree 
with  that  stated  in  the  declaration,  or  the  plaintiff  fails.  But  the 
profert  of  a  deed  without  a  seal  will  not  support  the  allegation  of 
a  deed  with  a  seal."  Neither,  as  I  conceive,  will  the  profert  of  an 
instrument,  importing,  in  the  body  of  it,  to  be  executed  under  the 
hand  of  the  party  only,  support  the  allegation  of  a  deed  sealed  with 
the  seal  of  the  party,  although  a  seal  be  to  that  instrument  in  reality 
affixed;  inasmuch  as  that  may  be  done  without  the  party's  knowledge 
or  intention. 

But  here  an  objection  arises  upon  the  pleading.  It  may  be  said, 
the  defendants  have,  by  their  plea  of  "covenants  performed,"  ad- 
mitted the  execution  of  the  covenant  set  forth  in  the  declaration. 
This  is  certainly  correct:  but,  inasmuch  as  oyer  was  not  asked  of 
that  covenant,  it  cannot  be  alleged  that  this  identical  instrument  is 
the  deed  declared  upon,  and  admitted  by  the  plea.  Every  objection 
to  the  instrument  on  the  ground  of  variance  between  the  deed  alleged 
in  the  declaration,  and  that  which  was  offered  in  evidence,  appears 
to  me  to  have  been  still  open  to  the  defendant.  I  am,  therefore,  of 
opinion,  that  the  judgment  of  the  District  Court  was  correct,  and 
ousht  to  be  affirmed.^ 


EAMES   V.   PRESTON. 

Illinois  Supreme  Court,   1858. 

[Reported  in  20  Illinois,  389.] 

Caton,  C.  J.  This  was  an  action  of  assumpsit  brought  against 
Eames,  Burlingame  and  Gray,  upon  a  note  thus  executed,  "Eames, 
Gray  &  Co.      [       ],"  and  the  only  question  is,  whether  assumpsit 

1  The  statement  of  the  case  has  been  abbreviated  and  concurring  opinions  of  Roane 
and  Fleming,  J.J.,  omitted. 

The  doctrine  of  this  case  has  been  frequently  followed  in  Virginia,  and  is  applied 
wkere  the  seal  attached  to  the  instrument  is  an  actual  seal,  as  well  as  where  it  is  a 
scroll.  Bradley  Salt  Co.  v.  Norfolk  Importing  Co.,  95  Va.  461  and  cases  cited.  A 
similar  rule  prevails  in  a  few  other  states.  Lee  v.  Adkins,  Minor,  187  ;  Carter  v.  Penn. 
4  Ala.  140;  Moore  v.  Leseur,  18  Ala.  606;  Blackwell  v.  Hamilton,  47  Ala.  470;  Mc- 
Donald V.  Bear  River  Co.,  13  Cal.  220;  Bohannon  v.  Hough,  1  Miss.  461  (but  see 
McRaven  v.  McGuire,  17  Miss.  34);  Keller  v.  McHuffman,  15  W.  Va.  64,  85.  See 
also  Buckingham  v.  Orr,  6  Col.  587. 

In  several  other  states  a  recital  is  necessary  to  give  a  scroll  the  effect  of  a  seal,  but 
a  real  seal  is  effectual  without  recital:  Alt  i\  Stoker,  127  Mo.  466,  and  cases  cited; 
Newbold  v.  Lamb,  2  South.  (N.  J.)  516;  Corliss  v.  Van  Note,  1  Harr.  (N.  J.)  324; 
Flemming  v.  Powell,  2  Tex.  225  (compare  English  v.  Helms,  4  Tex.  228 ;  Muckleroy 
V.  Bethauy,  23  Tex.  163).  See  also  Brown  v.  Jordhal,  32  Minn.  135;  Merritt  v.  Cor- 
nell, 1  E.D.  Smith,  335. 


SECT.   I.]  SATJNDERS   V.   SAUNDERS.  373 

can  be  maintained  on  this  note.  If  this  be  a  sealed  instrument,  then 
assumpsit  cannot  be  maintained  upon  it  (1  Chit.  PL,  title  Assumpsit, 
p.  99),  and  this  would  seem  to  settle  the  question,  for  this  is  cer- 
tainly an  instrument  under  seal.  If  the  member  of  the  firm  who 
executed  the  note  had  authority  under  seal  to  add  the  seals  of 
all,  then  the  seal  attached  is  the  seal  of  all ;  if  he  had  not,  then 
it  is  his  seal  only.  In  any  event  it  is,  as  to  him,  a  sealed  instru- 
ment. If,  as  to  the  others,  it  is  a  simple  instrument,  that  would 
not  remove  his  seal.  If  one  party  executes  an  instrument  and 
attaches  his  seal,  and  others  afterwards  sign  it  silently  without  at- 
taching seals,  they  are  presumed  to  adopt  the  seal  of  the  first,  and, 
as  to  all,  it  is  a  sealed  instrument.^  If,  however,  the  first  sign  with- 
out a  seal,  and  the  others  add  seals  to  their  names,  without  the  direc- 
tion or  consent  of  the  first,  then  he  cannot  be  presumed  to  adopt  their 
seals  as  his,  and  it  continues,  as  to  him,  a  simple  instrument,  as  it 
was  when  he  first  executed  it.^  Nor  would  this  prevent  it  from  being 
a  sealed  instrument  as  to  those  who  deliberately  attached  their  seals. 
As  to  one  of  the  makers  of  this  note,  it  was  a  sealed  instrument,  and 
assumpsit  could  not  be  maintained  upon  it. 

The  judgment  must  be  reversed.  Judgment  reversed. 


HANNAH  F.  SAUNDERS  v.    CHARLES  F.  SAUNDERS. 

Supreme  Judicial  Court  of  Massachusetts,  January  21,   1891- 
September  3,   1891. 

[Reported  in  154  Massachusetts,  337.] 

Morton,  J.  This  action  is  brought  by  the  plaintiff  upon  an  in- 
strument under  seal  to  which  she  is  not  a  party,  and  of  which  none 
of  the  consideration  moved  from  her.  The  instrument  is  signed  by 
Charles  F.  Saunders,  the  defendant,  and  is  between  him  and  George 
M.  Saunders,  who  together,  and  the  survivor  of  them,  were  entitled 

1  Biery  v.  Haines,  5  Whart.  563;  Hess's  Estate,  150  Pa.  346,  contra.  Where 
the  instrument  recited  that  the  parties  had  sealed  it,  the  presumption  was  held  appli- 
cable in  Davis  v.  Burton,  4  111.  41  ;  McLean  v.  Wilson,  4  111.  50;  Trogdon  v.  Cleveland 
Stone  Co.,  53  111.  App.  206  ;  Ryan  v.  Cooke,  152  111.  302;  Tasker  v.  Bartlett,  5  Cush. 
359  ;  Lunsford  v.  La  Motte  Lead  Co.,  54  Mo.  426 ;  Burnett  v.  McCluey,  78  Mo.  676, 
688 ;  Pequawkett  Bridge  v.  Mathes,  7  N.  H.  230 ;  Tenney  v.  East  Warren  Lumber  Co., 
43  N.  H.  343  ;  Bowman  v.  Robb,  6  Ta.  302.  See  also  Yarborough  v.  Monday,  3  Dev. 
420;  HoUis  v.  Pond,  7  Humph.  222;  Lambden  v.  Sharp,  9  Humph.  224.  But  see 
Stabler  v.  Cowman,  7  G.  &  J.  284;  State  v.  Ilumbird,  54  Md.  327,  contra.  In  Cooch 
r.  Goodman,  2  Q.  B.  580,  598,  Lord  Denman,  C.  J.,  said  :  "  It  is  true  that  one  piece  of 
wax  may  serve  as  a  seal  for  several  persons  if  each  of  them  impresses  it  himself,  or 
one  for  all,  by  proper  autliority,  or  in  the  presence  of  all,  as  was  held  in  Ball  v.  Dun- 
sterville,  4  T.  R.  313,  following  Lord  Lovelace's  case,  5  B.  &  C.  355,  but  then  it  must 
appear  by  the  deed,  and  profess  to  be  the  seal  of  each." 

2  Rankin  v.  Roler,  8  Gratt.  63,  ace. 


374  SAUNDERS    V.    SAUNDERS.  [CHAP.    II. 

to  the  income  of  a  trust  fund.  The  consideration  is  one  dollar  paid 
by  said  George  M.  Saunders,  and  like  covenants  on  the  part  of  said 
George  with  said  Charles  to  those  contained  in  the  instrument  de- 
clared on.  The  covenants  or  agreements  in  the  instrument  relied 
on  are  as  follows:  "I,  the  said  Charles  F.  Saunders,  do  hereby  cove- 
nant and  agree  to  and  with  the  said  George  M.  Saunders,  and  to  and 
with  such  person  as  may  be  the  wife  of  said  George  M.  Saunders  at 
the  time  of  his  decease,  that  if  the  said  George  M.  shall  die  in  my 
lifetime,  leaving  a  widow  living,  I  will,  from  and  after  the  decease 
of  said  George  M.,  and  during  my  lifetime,  pay  over  to  such  person 
as  may  be  the  widow  of  said  George  M.,  one  third  of  the  entire  in- 
come aforesaid  to  which  I  may  be  entitled  as  such  survivor."  The 
plaintiff  is  the  widow  of  George,  and  it  is  clear  that,  so  far  as  she 
relies  upon  the  covenants  and  agreements  made  between  her  husband 
and  the  defendant  for  her  benefit,  they  will  not  support  this  action. 
It  is  well  settled  in  this  State,  in  regard  to  simple  contracts,  that 
"a  person  who  is  not  a  party  to  a  simple  contract,  and  from  whom 
no  consideration  moves,  cannot  sue  on  the  contract,  and  consequently 
that  a  promise  made  by  one  person  to  another,  for  the  benefit  of  a 
third  person  who  is  a  stranger  to  the  consideration,  will  not  support 
an  action  by  the  latter."  Exchange  Bank  v.  Rice,  107  Mass.  37, 
and  cases  cited.  Rogers  v.  Union  Stone  Co.,  130  Mass.  581;  New 
England  Dredging  Co.  v.  Rockport  Granite  Co.,  149  Mass.  381; 
Marston  v.  Bigelow,  150  Mass.  45.  In  regard  to  contracts  under 
seal,  the  law  has  always  been  that  only  those  who  were  parties  to 
them  could  sue  upon  them.  Sanders  v.  Filley,  12  Pick.  554;  John- 
son V.  Foster,  12  Met.  167;  Northampton  v.  Elwell,  4  Gray,  81; 
Flynn  v.  North  American  Ins.  Co.,  115  Mass.  449;  Flynn  v.  Mass- 
achusetts Benefit  Association,  152  Mass.  288.  The  case  of  Felton 
V.  Dickinson,  10  Mass.  287,  to  which  this  case  would  seem  to  be 
somewhat  analagous,  is  fully  explained  in  Marston  v.  Bigelow,  tibi 
supra,  and  is  authority  only  to  the  extent  there  indicated. 

It  is  suggested,  however,  that,  somewhat  after  the  analogy  fur- 
nished by  letters  of  credit,  the  plaintiff  may  avail  herself  of  so  much 
of  the  covenants  and  agreements  as  purports  to  be  made  "to  and  with 
such  person  as  may  be  the  wife  of  said  George  M.  Saunders  at  the 
time  of  his  decease;  "  that  is,  that  this  covenant  amounts  to  a  promise 
on  the  part  of  the  defendant  to  whomsoever  may  be  the  wife  of  George 
M.  Saunders  at  his  death,  that  he  will  pay  her  annually  thereafter  a 
certain  sum  so  long  as  he  shall  live,  and  that  the  plaintiff,  being  the 
wife  of  said  George,  may  therefore  maintain  an  action  upon  it.  But 
it  is  to  be  observed  that  the  covenant  did  not  purport  to  create  a 
present  agreement  with  the  person  who  was  the  wife  of  George  at 
the  time  the  agreement  between  him  and  the  defendant  was  executed; 
neither  does  it  purport  to  be  a  continuing  offer  or  promise  on  the  part 
of  the  defendant,  as  in  the  case  of  a  letter  of  credit  or  an  oft'er  of 
reward,  that,  if  the  person  who  shall  be  the  wife  of  George  at  the 
time  of  his  decease  shall  do  certain  things,  then  the  defendnnt  "ill 


SECT.   II.J  KOBERTS   V.    SECURITY  COMPAJfT.  375 

pay  her  a  certain  sum.  On  the  contrary,  it  was  an  attempt  to  create 
a  covenant  to  arise  wholly  in  the  future  between  the  defendant  and 
a  party  who  at  the  time  was  unascertained,  and  from  whom  no  con- 
sideration was  to  move,  and  who  was  not  in  any  way  privy  to  the 
contract  between  the  defendant  and  said  George.  We  do  not  think 
this  can  be  done. 

The  question  whether  the  administrator  or  executor  of  the  husband 
of  the  plaintiff  may  not  maintain  an  action  on  the  agreement  for  her 
benefit,  or  whether  she  may  not  herself  bring  suit  in  the  name  of  the 
executor  or  administrator,  has  not  been  argued  to  us,  and  we  have 
not  therefore  considered  it.  For  these  reasons,  a  majority  of  the 
Court  think  that,  according  to  the  agreement,  the  entry  must  be, 

Judgment  for  the  defendant. 


sp:ction  il 

DELIVERY. 


From  BUTLER  and  BAKER'S   CASE. 

King's  Bench,   1591. 

[Reported  in  3  Coke,  25  a,  26  b.] 

If  a  makes  an  obligation  to  B  and  delivers  it  to  C  to  the  use  of 
B,  this  is  the  deed  of  A  presently ;  but  if  C  offers  it  to  B,  there  B 
may  refuse  it  m  pais,  and  thereby  the  obligation  will  lose  its  force 
(but  perhaps  in  such  case  A  in  an  action  brought  on  this  obligation 
cannot  plead  7ion  est  factum,  because  it  was  once  his  deed). 


ROBERTS   V.    SECURITY   COMPANY,   LIMITED. 
Court  of  Appeal,   1896. 
[Reported  in  [1897]  1  Q.  B.  111.] 

Appeal  by  the  defendants  from  the  judgment  of  a  Divisional  Court 
(Grantham  and  Wright,  JJ.)  affirming  the  decision  of  the  judge  of 
the  Leeds  County  Court. 

The  action  was  brought  upon  a  policy  of  insurance  against  loss  by 
burglary  or  housebreaking. 

The  plaintiff  on  December  14,  1895,  signed  and  sent  to  the  defend- 
ants a  proposal  for  an  insurance  to  the  amount  of  167/.  upon  fur- 
niture and  other  chattels  in  a  dwelling-house  against  loss  by  burglary 
or  housebreaking.  The  proposal,  which  was  made  upon  a  printed 
form,  stated  that  the  proposer  agreed  to  accept  a  policy  subject  to 


376  ROBERTS   V.    SECURITY   COMPANY.  [CHAP.   U, 

the  usual  conditions  prescribed  by  the  company  and  indorsed  on  that 
policy.  It  was  stated  by  the  form  that  the  policy  was  renewable  on 
the  Ist  of  the  month,  and  the  premium  for  the  odd  time  over  twelve 
months  was  to  be  added  to  the  first  year's  premium;  and  that  no 
insurance  would  be  considered  in  force  until  the  premium  had  been 
paid.  The  proposal  stated  that  the  annual  premium  was  to  be  9s. 
9d.,  and  the  first  premium  9s.  lid.,  2d.  being  the  addition  in  respect 
of  the  odd  time. 

On  December  18  a  document  called  a  protection-note  was  signed 
by  the  defendants'  agent  in  which  it  was  stated  that  the  plaintiff, 
having  made  a  proposal  to  the  company  for  insurance  against  loss 
arising  from  burglary  or  housebreaking  for  the  sum  of  1671.  on 
property  described  in  the  proposal,  and  having  paid  to  the  agent  the 

sum  of  £ (the  blank  not  being  filled  up),  was  thereby  declared 

to  be  provisionally  protected  against  that  risk  (subject  to  the  condi- 
tions contained  in  and  indorsed  on  the  form  of  policy  used  by  the 
company)  for  seven  days  from  the  date  thereof,  or  until  the  proposal 
should  be  in  the  meantime  rejected.  The  protection-note  contained 
a  note  that,  in  the  event  of  the  proposal  being  declined,  the  deposit 
paid  would  be  refunded  less  the  proportion  of  the  premium  for  the 
period  covered.  The  protection-note  was  sent  by  the  defendants' 
agent  to  the  plaintiff  in  a  letter  stating  that  a  policy  would  be  sent  in 
due  course.  No  sum  of  money  ever  was  paid  by  way  of  premium.  On 
the  night  of  December  26,  or  early  in  the  morning  of  December  27, 
a  burglary  was  committed  on  the  plaintiff's  premises  and  a  loss  of 
some  of  the  property  alleged  by  the  plaintiff  to  be  insured  was  thereby 
occasioned.  Upon  December  27,  at  a  meeting  of  directors  of  the  de- 
fendants' company,  who  were  then  ignorant  of  the  fact  that  the  loss 
had  taken  place,  the  seal  of  the  company  was  affixed  to  a  policy  of 
insurance  in  conformity  with  the  proposal;  and  the  policy  was  signed 
by  two  of  the  directors  of  the  company  and  their  secretary.  The 
policy  recited  that  the  plaintiff  had  made  a  proposal  dated  December 
14,  1895,  to  the  company  for  an  assurance  of  the  property  therein- 
after described  for  the  sum  thereinafter  appearing,  and  had  paid  to 
the  company  the  sum  called  in  the  mai-gin  thereof  the  first  premium, 
being  the  premium  required  by  the  company  for  the  assurance  of  the 
said  property  from  noon  of  December  14,  1895,  to  noon  of  January 
1,  1897,  and  purported  to  insure  the  property  described  accordingly. 
In  the  margin  were  notes  stating  that  9s.  lie?,  was  the  sum  paid  for 
the  first  premium,  that  the  renewal  date  was  January  1,  annually,  and 
that  the  renewal  premium  was  9s.  9d.  It  was  provided  by  the  policy 
that  no  assurance  by  way  of  renewal  or  otherwise  should  be  held  to  be 
affected  until  the  premium  due  thereon  should  have  been  paid.  The 
policy  was  not  delivered  to  the  plaintiff,  but  remained  at  the  com- 
pany's office.  The  plaintiff  stated  in  evidence  that  he  had  never  paid 
the  premium,  because  he  had  never  been  asked  for  it.  The  defend- 
ants denied  liability  on  the  ground  that,  when  the  burglary  took 
place,  no  contract  for  insurance  had  been  concluded. 


SECT.   II.]  EGBERTS    V.    SECUEITY   COMPANY.  377 

Channell,  Q.  C,  and  G.  M.  Cohen,  for  the  defendants. 

Longstaffe,  for  the  plaintiff. 

The  county  court  judge  gave  judgment  for  the  plaintiff. 

Lord  Esher,  M.R.  In  my  opinion  this  appeal  fails.  In  this 
case  there  was  a  proposal  for  insurance  which  was  accepted.  It  does 
not  appear  to  me  material  to  consider  what  would  have  been  the  effect 
of  the  proposal  and  the  acceptance  of  it,  if  the  matter  had  rested 
there.  The  transaction  had  gone  beyond  that  stage;  for  a  policy 
was  executed  under  the  seal  of  the  company;  and  the  effect  of  that 
is  what  we  have  to  consider.  The  question  raised  is  whether  an  in- 
surance was  effected  by  the  sealing  and  signing  of  the  policy,  or  the 
execution  of  the  policy  was  only  intended  to  be  conditional.  I  do 
not  see  any  evidence  of  a  conditional  delivery,  or  that  this  document 
was  intended  not  to  be  a  policy  unless  certain  conditions  were  ful- 
filled. The  document  states  that  in  witness  thereof  the  company 
have  caused  their  common  seal  to  be  affixed,  and  that  the  under- 
signed, being  two  directors  and  the  secretary  of  the  company,  have 
thereunto  set  their  hands.  It  is  urged  that  the  document  was  still  in 
the  hands  of  the  company  or  of  their  officers  on  their  behalf.  There 
is  no  suggestion  that  it  was  delivered  to  any  one  as  an  escrow.  If 
it  was  in  the  hands  of  the  company  itself,  it  could  not  be  delivered 
as  an  escrow.  The  proper  inference  appears  to  me  to  be  that  the 
directors  simply  executed  the  policy,  and  the  fact  that  it  remained 
in  their  hands,  or  I  should  suppose  in  the  hands  of  their  secretary 
on  their  behalf,  does  not  seem  to  me  material.  The  company  might 
have  delivered  the  policy  to  some  one  to  hold  as  an  escrow,  but  they 
did  not  and  never  intended  to  do  so.  The  policy  was  in  my  opinion 
executed  by  the  company  and  was  not  executed  conditionally.  There- 
fore we  must  take  it  that  there  is  an  existing  policy,  and  all  we  have 
to  do  is  to  construe  it.  It  is  a  contract  to  insure  the  plaintiff  against 
loss  of  the  property  insured  by  burglary  or  housebreaking  from  De- 
cember 14,  1895,  to  January  1,  1897,  and  it  recites  that  the  assured 
has  paid  the  premium  for  that  insurance.  It  was  said  that  that  re- 
cital was  incorrect,  and  that  the  premium  so  stated  to  have  been  paid 
never  was  in  fact  paid.  I  do  not  think  the  defendants  are  for  the 
present  purpose  at  liberty  to  show  that  in  contradiction  of  the  terms 
of  their  own  deed.  They  have  treated  the  premium  as  paid,  and,  if  it 
has  not  been  paid,  I  think  they  have  thereby  waived  the  previous  pay- 
ment as  a  condition  of  the  existence  of  an  insurance.  With  regard 
to  the  alleged  custom  in  the  case  of  marine  insurance,  which  has  been 
referred  to,  it  is  rather  a  practice  than  a  custom  properly  so  called. 
It  is  not  confined  to  any  particular  place,  but  is  a  general  practice 
for  the  convenience  of  trade.  If,  as  I  think,  the  company  have  by 
the  terms  of  the  policy  which  they  have  executed  waived  the  previous 
payment  of  the  premium  as  a  condition  of  the  insurance,  what  is  the 
result?  It  appears  to  me  that  they  may  claim  payment  of  the  pre- 
mium at  any  time,  or,  if  there  is  a  loss  before  it  is  paid,  it  may  be 


378  MEIGS   V.   DEXTER.  [OHAP.    U. 

deducted  from  the  amount  payable  in  respect  of  that  loss,  but  they 
cannot,  after  tbey  have  executed  a  deed  in  these  terms,  get  rid  of  lia- 
bility merely  on  the  ground  that  the  premium  has  not  been  previously 
paid.     For  these  reasons  I   think  the  appeal  must  be  dismissed.^ 


MARY  MEIGS   v.    MARY  J.    DEXTER. 

Supreme  Judicial  Court  of  Massachusetts,  October  18- 
november  23,  1898. 

[Reported  in  172  Massachusetts,  217.2] 

Knowlton,  J.  On  the  question  whether  there  was  a  delivery  of 
the  deed,  the  judge  instructed  the  jury  that  if  Hannah  Hall,  "after 
signing  the  deed,  placed  it  upon  the  table,  or  placed  it  in  Captain 
Macomber's  hands  with  the  intention  that  it  should  become  effective 
and  operative,  then  there  was  a  good  delivery  of  the  deed.  The  peti- 
tioner excepted  to  this  instruction.  The  testimony  tended  to  show 
that  Captain  Macomber  was  merely  a  scrivener  before  whom  the  deed 
was  laid  upon  the  table  after  it  was  signed,  and  that  he  went  away 
and  left  it  there,   not  representing  the  grantee  in  any  way. 

We  are  of  opinion  that  the  instruction  was  erroneous  in  omitting 
to  embody  the  requirement  that  there  should  be  an  acceptance  of  the 
deed  by  some  one  representing  the  grantee.  It  is  well  settled  in 
this  Commonwealth  that  the  delivery  of  a  deed  is  not  complete  and 
effectual  without  an  acceptance  by  the  grantee,  or  by  some  one  au- 
thorized to  represent  him,  or  who  assumes  to  represent  him,  and 
whose  act  of  acceptance  is  afterwards  ratified.  Hawkes  v.  Pike, 
105  Mass.  560;  Commonwealth  v.  Cutler,  153  Mass.  252;  Barnes  v. 
Barnes,   161  Mass.  381. 

^  Lopes,  L.  J.,  and  Higby,  L.  J.,  delivered  concurring  opinions.  The  decision  fol- 
lows Xeuos  V.  Wickham,  L.  R.  2  H.  L.  296.  In  that  case  the  House  of  Lords,  revers- 
ing the  decision  of  the  Exchequer  Chamber,  held  a  policy  of  insurance  had  become 
operative  tliough  still  in  the  possession  of  the  company.  The  judges  were  called  upon 
for  their  opinions  and  Mellor  and  Blackburn,  J.J.,  and  Pigott,  B.,  were  of  opinion  that 
tlie  policy  had  been  delivered ;  Smith  and  Willes,  JJ.,  were  of  a  contrary  opinion.  The 
Lord  (Chancellor  (Chelmsford)  shared  the  opinion  of  the  minority  of  the  Judges  and 
Lord  Cranworth  that  of  the  majority.  Doe  v.  Knight,  5  B.  &  C.  671  ;  Hall  v.  Palmer, 
3  Hare,  532  ;  Fletcher  w.  Fletcher,  4  Hare,  67  ;  Dillon  v.  Coffin,  4  M.  &  Cr.  647  ;  p:xton 
V.  Scott,  6  Sim.  31  ;  Jeffries  v.  Alexander,  8  H.  L.  C.  594  ;  Bonfield  v.  Hassell,  32 
Beav.  217,  ace.     Conf.  Cracknall  v.  Janson,  11  Ch.  D.  1. 

2  A  portion  of  the  case  is  omitted. 

Almost  all  of  the  numerous  cases  on  delivery  of  sealed  instruments  have  arisen  in 
regard  to  conveyances,  and  the  subject  is  generally  treated  in  connection  with  the  law 
of  conveyancing.  See  Gray's  cases  on  Property,  Vol.  III.  pp.  633-735;  Devlin  on 
Deeds,  §  260  et  seq. 


SECT,   ni.]  SHARLNGTON   V.   STUOTTON.  379 


SECTION  in. 

CONSIDERATION. 


WATHAM,  ARGUENDO,  IN  ANONYMOUS,  1385. 

[Reported  in  Bellewe,  111.] 

In  debt  on  contract  the  plaintiff  shall  show  in  his  count  for  what 
cause  the  defendant  became  his  debtor.  Otherwise  in  debt  on  obliga- 
tion, for  the  obligation  is  contract  in  itself.^ 


BROMLEY,  Arguendo,   in   SHARINGTON   v.   STROTTON. 
King's  Bench,   1565. 

[Reported  in  1  Plowden,  298,  308  a.] 

And,  Sir,  by  the  law  of  this  land  there  are  two  ways  of  making 
contracts  or  agreements  for  lands  or  chatties.  The  one  is,  by  words, 
which  is  the  inferior  method ;  the  other  is,  by  writing,  which  is  the 
superior.  And  because  words  are  oftentimes  spoken  by  men  unad- 
visedly and  without  deliberation,  the  law  has  provided  that  a  contract 
by  words  shall  not  bind  without  consideration.  As  if  I  promise  to 
give  you  20^.  to  make  your  sale  de  novo,  here  you  shall  not  have  an 
action  against  me  for  the  20^.,  as  it  is  atBrmed  in  the  said  case  in  17 
Ed.  4,  for  it  is  a  nude  pact,  et  ex  nudo  pacta  nan  oritur  actio.  And 
the  reason  is,  because  it  is  by  words  which  pass  from  men  lightly 
and  inconsiderately,  but  where  the  agreement  is  by  deed,  there  is 
more  time  for  deliberation.  For  when  a  man  passes  a  thing  by  deed, 
first  there  is  the  determination  of  the  mind  to  do  it,  and  upon  that 
he  causes  it  to  be  written,  which  is  one  part  of  deliberation,  and 
afterwards  he  puts  his  seal  to  it,  which  is  another  part  of  delibera- 
tion, and  lastly  he  delivers  the  writing  as  his  deed,  which  is  the  con- 
summation of  his  resolution;  and  by  the  delivery  of  the  deed  from 
him  that  makes  it  to  him  to  whom  it  is  made,  he  gives  his  assent  to 
part  with  the  thing  contained  in  the  deed  to  him  to  whom  he  delivers 
the  deed,  and  this  delivery  is  as  a  ceremony  in  law,  signifying  fully 
his  good-will  that  the  thing  in  the  deed  should  pass  from  him  to  the 
other.  So  that  there  is  great  deliberation  used  in  the  making  of 
deeds,  for  which  reason  they  are  received  as  a  lien  final  to  the  party, 
and  are  adjudged  to  bind  the  party  without  examining  upon  what 
cause  or  consideration  tliey  were  made.  And  therefore  in  the  case 
put  in  17  Ed.  4,  put  it  thus,  that  I  by  deed  promise  to  give  you  20^. 

^  Also  reported  in  Bellewe,  32  ;  Fitz.  Ab.  Annuitie,  pi.  54. 


380  KRELL   V.   CODMAN.  [CHAP.  H. 

to  make  your  sale  de  novo,  here  you  shall  have  an  action  of  debt  upon 
this  deed,  and  the  consideration  is  not  examinable,  for  in  the  deed 
there  is  a  sufficient  consideration,  viz.  the  will  of  the  party  that 
made  the  deed.  And  so  where  a  carpenter,  by  parol  without  writing, 
undertook  to  build  a  new  house,  and  for  the  not  doing  of  it  the  party 
in  11  H.  4,  brought  an  action  of  covenant  against  the  carpenter,  there 
it  does  not  appear  that  he  should  have  anything  for  building  the 
house,  and  it  was  adjudged  that  the  plaintiff  should  take  nothing  by 
his  writ:  but  if  it  had  been  by  specialty,  it  would  have  been  other- 
wise; and  so  it  is  there  held  by  Thirning,  causa  qua  supra.  So  in  45 
Ed.  3,  in  debt,  the  plaintiff  counted  that  a  covenant  was  made  between 
hiiH  and  the  defendant,  that  the  plaintiff  should  marry  the  defend- 
ant's daughter,  and  that  the  defendant  should  be  bound  to  him  in 
100^.,  and  he  said  that  he  had  married  his  daughter;  and  the  count 
was  challenged,  because  this  debt  is  demanded  upon  a  contract  touch- 
ing matrimony,  which  ought  to  be  in  Court  Christian ;  but  notwith- 
standing this,  forasmuch  as  he  demanded  a  debt  upon  a  deed, 
whereby  it  was  become  a  lay-contract,  he  was  put  to  answer:  but 
otherwise  it  would  have  been  if  it  had  been  without  deed,  as  it  is 
there  put;  and  14  Ed.  4,  and  also  17  Ed.  4,  are,  that  if  it  be  without 
deed  the  action  does  not  lie,  because  the  marriage,  which  is  the  con- 
sideration, is  a  thing  spiritual:  which  books  are  contrary  to  the 
opinion  of  Thorp  in  the  said  case  in  22  Ass.  fol.  305.  So  that 
where  it  is  by  deed,  the  cause  or  consideration  is  not  enquirable,  nor 
is  it  to  be  weighed,  but  the  party  ought  only  to  answer  to  the  deed, 
and  if  he  confesses  it  to  be  his  deed,  he  shall  be  bound,  for  every 
deed  imports  in  itself  a  consideration,  viz.,  the  will  of  him  that  made 
it,  and  therefore  where  the  agreement  is  by  deed,  it  shall  never  be 
called  a  nudum  pactum.  And  in  an  action  of  debt  upon  an  obliga- 
tion, the  consideration  upon  which  the  party  made  the  deed  is  not 
to  be  enquired,  for  it  is  sufficient  to  say  that  it  was  his  will  to  make 
the  deed.^ 


PAUL   K.  L.  E.  KRELL  and  Another  v.  ROBERT   CODMAN. 

Supreme  Judicial  Court  of  Massachusetts,  November 
12,  13,  1890-OcTOBER  24,  1891. 

[^Reported  in  154  Massnrhiufptts,  454.] 

Holmes,  J.  This  is  an  action  on  a  voluntary  covenant  in  an  in- 
denture under  seal,  executed  by  the  defendant's  testatrix  in  Eng- 
land, that  her  executors,  within  six  months  after  her  death,  should 

1  "  I  would  have  one  case  showed  by  men  learned  in  the  law,  where  there  is  a  deed, 
and  yet  there  needs  a  consideration ;  as  for  parol,  the  law  adjudgeth  it  too  light  to 
give  action  without  consideration ;  but  a  deed  ever  in  law  imports  a  consideration, 
because  of  tiie  deliberation  and  ceremony  in  the  confection  of  it."  Bacon  on  Uses, 
13  (about  1602). 


SECT.    III.]  KRELL   V.   CODJIAK.  381 

pay  to  the  plaintiffs,  upou  certain  trusts,  the  sum  of  2,500^.,  with 
interest  at  four  per  cent  from  the  day  of  her  death. 

It  is  agreed  that  by  the  law  of  England  such  a  covenant  constitutes 
a  debt  of  the  covenantor  legally  chargeable  upon  his  or  her  estate, 
ranking  after  debts  for  value,  but  before  legacies.  But  it  is  con- 
tended by  the  defendant  that  a  similar  instrument  executed  here 
would  be  void.  The  testatrix  died  domiciled  in  Massachusetts, 
and  the  only  question  is  whether  the  covenant  can  be  enforced  here. 
If  a  similar  covenant  made  here  would  be  enforced  in  our  courts, 
the  plaintiffs  are  entitled  to  recover,  and  in  the  view  which  we  take 
on  that  question  it  is  needless  to  examine  with  nicety  how  far  the 
case  can  be  governed  by  the  English  law  as  to  domestic  covenants, 
and  how  far  by  that  of  Massachusetts. 

In  our  opinion,  such  a  covenant  as  the  present  is  not  contrary  to 
the  policy  of  our  laws,  and  could  be  enforced  here  if  made  in  this 
State.  If  it  were  a  contract  upon  valuable  consideration,  there  is 
no  doubt  it  would  be  binding.  Parker  v.  Coburn,  10  Allen,  82.  We 
presume  that,  in  the  absence  of  fraud,  oppression,  or  unconscion- 
ableness,  the  courts  would  not  inquire  into  the  amount  of  such  con- 
sideration. Parish  v.  Stone,  14  Pick.  198,  207.  This  being  so, 
consideration  is  as  much  a  form  as  a  seal.  It  would  be  anomalous 
to  say  that  a  covenant  in  all  other  respects  unquestionably  valid  and 
binding  (Comstock  v.  Son,  154  Mass.  389,  and  Mather  v.  Corliss,  103 
Mass.  568,  571)  was  void  as  contravening  the  policy  of  our  statute 
of  wills,  but  that  a  parol  contract  to  do  the  same  thing  in  considera- 
tion of  a  bushel  of  wheat  was  good.  So,  again,  until  lately  an  oral 
contract  founded  on  a  sufficient  consideration  to  make  a  certain  pro- 
vision by  will  for  a  particular  person  was  valid.  Wellington  v. 
Apthorp,  145  Mass.  69.  Now,  by  statute,  no  agreement  of  that  sort 
shall  be  binding  unless  such  agreement  is  in  writing,  signed  by  the 
party  whose  executor  is  sought  to  be  charged,  or  by  an  authorized 
agent.  St.  1888,  c.  372.  Again,  it  would  be  going  a  good  way  to 
say  by  construction  that  a  covenant  did  not  satisfy  this  statute. 

The  truth  is,  that  the  policy  of  the  law  requiring  three  witnesses 
to  a  will  has  little  application  to  a  contract.  A  will  is  an  ambulatory 
instrument,  the  contents  of  which  are  not  necessarily  communicated 
to  any  one  before  the  testator's  death.  It  is  this  fact  which  makes 
witnesses  peculiarly  necessary  to  establish  that  the  document  offered 
for  probate  was  executed  by  the  testator  as  a  final  disposition  of  his 
property.  But  a  contract  which  is  put  into  the  hands  of  the  adverse 
party,  and  from  which  the  contractor  cannot  withdraw,  stands  differ- 
ently. See  Perry  v.  Cross,  132  Mass.  454,  456,  457.  The  moment 
it  is  admitted  that  some  conti'acts  which  are  to  be  performed  after 
the  testator's  death  are  valid  without  three  witnesses,  a  distinction 
based  on  the  presence  or  absence  of  a  valuable  consideration  becomes 
impossible  with  reference  to  the  objection  which  we  are  considering. 
A  formal  instrument  like  the  present,  drawn  up  by  lawyers  and  exe- 
cuted in  the  most  solemn  form  known  to  the  law,  is  less  likely  to  be 


382  KRELL   V.    CODMAN.  [CHAP.    H. 

a  vehicle  for  fraud  than  a  parol  contract  based  on  a  technical  detri- 
ment to  the  promisee.  Of  course,  we  are  not  now  speaking  of  the 
rank  of  such  contracts  i7iter  sese.  Stone  v.  Gerrish,  1  Allen,  175, 
cited  by  the  defendant,  contains  some  ambiguous  expressions,  but 
was  decided  on  the  ground  that  the  instrument  did  not  purport  to  be 
and  was  not  a  contract.  Cover  v.  Stem,  67  Md.  449,  was  to  like 
effect.  The  present  instrument  indisputably  is  a  contract.  It  was 
drawn  in  English  form  by  English  lawyers,  and  must  be  construed 
by  English  law.  So  construed,  it  created  a  debt  on  a  contingency 
from  the  covenantor  herself,  which  if  she  had  gone  into  bankruptcy 
would  have  been  provable  against  her.  £x  parte  Tindal,  8  Bing. 
402;  s.  c.  1  D.  &  Ch.  291,  and  Mont.  375,  462;  Robson,  Bank- 
ruptcy (5th  ed.),  274.  The  cases  of  Parish  v.  Stone,  14  Pick.  198, 
and  AYarren  v.  Durfee,  126  Mass.  338,  were  actions  on  promissory 
notes,  and  we  decided  on  the  ground  of  a  total  or  partial  want  of 
consideration. 

There  is  no  question  here  of  any  attempt  to  evade  or  defeat  rights 
of  third  persons,  which  would  have  been  paramount  had  the  cove- 
nantor left  the  sum  in  question  as  a  legacy  by  will.  There  is  no 
ground  for  suggesting  an  intent  to  evade  the  provisions  of  our  law 
regulating  the  execution  of  last  wills,  —  if  such  intent  could  be  mate- 
rial when  an  otherwise  binding  contract  was  made.  See  Stone  v. 
Hackett,  12  Gray,  227,  232,  233.  There  was  simply  an  intent  to 
make  a  more  binding  and  irrevocable  provision  than  a  legacy  could 
be,  and  we  see  no  reason  why  it  should  not  succeed. 

Judgment  for  the  plaintiffs.^ 

1  In  many  States  the  distinction  between  sealed  and  unsealed  written  contracts  is 
abolished.  Alaska,  Code,  Civ.  Proc.  §  1041  ;  Arizona,  Civ.  Code  (1901),  §  4054 ;  Cali- 
fornia, Civ.  Code,  §  19.32  ;  Idaho,  Rev.  Stat.  (1887),  §3227  ;  Iowa,  Code  (1897),  §  3068  ; 
Kentucky,  Comp.  Stat.  (1894),  §  472;  Mississippi,  Code  (1892),  §§  4079,  4081  ;  Mis- 
souri, Rev.  Stat.  (1899),  §  893  ;  Montana,  Civ.  Code  (1895),  §§  2190,  2191 ;  Nebraska, 
Comp.  Stat.  (1899),  §  4951  ;  Nevada,  Gen.  Stat.  (1885),  §  2667  ;  North  Dakota,  Rev. 
Code  (1895),  §  3892  ;  Ohio,  Bates'  Annot.  Stat.  (1900),  §  4  ;  Oklahoma,  Stat.  (1893), 
§  826;  South  Dakota,  Annot.  Stat.  (1901),  §  4738;  Tennessee  Code  (1884),  §  2478; 
Texas,  Rev.  Stat.  (1895),  Art.  4862.  See  also  Alaska,  Code  Civ.  Proc.  §  1041  ;  Indiana, 
Code  Civ.  Proc.  §  450. 

In  most  of  tliese  States  it  is  also  enacted  that  any  written  contract  shall  be  presumed 
to  have  been  made  for  sufficient  consideration  ;  but  if  lack  of  consideration  is  affirma- 
tively proved  the  contract  is  invalid.  Arizona,  Civ.  Code  (1901),  §  4055  ;  California, 
Civ.  Code,  §  1963  (39) ;  Idaho,  Rev.  Stat.  (1887),  §  3222  ;  Iowa,  Code  (1897),  §  3069; 
Kentucky,  Comp.  Stat.  (1894),  §  471  ;  Mississippi,' Code  (1892),  §§  4080,  4082  ;  Mis- 
souri, Rev.  Stat.  (1899),  §  894  ;  Montana,  Civ.  Code  (1895),  §  2169;  North  Dakota, 
Rev.  Code  (1895),  §  3880  ;  South  Dakota.  Annot.  Stat.  (1901 ),  §  4727  (2) ;  Tennessee, 
Code  (1884),  §  2479  ;  Texas,  Rev.  Stat.  (1895),  Art.  4863.  See  also  Rhode  Island  Gen. 
Laws  (1896),  c.  202,  §  4. 

In  other  States  it  is  enacted  only  that  sealed  contracts  shall  be  presumed  in  the 
absBence  of  contrary  evidence  to  have  been  made  for  sufficient  consideration,  and  in  snch 
States  sealed  contracts  differ  from  ordinary  written  contracts  to  this  extent.  Ala- 
bama, Code  (1896),  §  3288;  Michigan,  Comp.  Laws  (1897),  §§  10185,  10186;  New 
Jersey,  Gen.  Stat.  (1895),  p.  1413^  §  72  ;  New  York,  Bird.seve's  Rev.  Stat.  (1896), 
p.  1099,  §  14;  Oregon,  Hill's  Annot.  Laws  (1892),  §  753;  Wisconsin,  Annot.  Stat. 
(1889),  §  4195. 


SECT.   I.]  BOURNE  V.  MASON.  383 

CHAPTER   III. 

PARTIES   AFFECTED   BY   CONTRACTS. 


SECTION   I. 

CONTRACTS  FOR   THE   BENEFIT   OF  THIRD   PERSONS.^ 


/■ 


BOURNE  V.   MASON  and  Another. 
In  the  King's  Bench,  Hilary  Term,  1669. 

[Reported  in  1  Ventris,  6.] 

In  an  assumpsit,  the  plaintiff  declares,  that,  whereas  one  Parrle  waa 
indebted  to  the  plaintiff  and  defendants  in  two  several  sums  of  money, 
and  that  a  stranger  was  indebted  in  another  sum  to  Parrie  ;  that  there 
being  a  communication  between  them,  the  defendants,  in  consideration 
that  Pan'ie  would  permit  them  to  sue,  in  his  name,  the  stranger,  for  the 
sum  due  to  him,  promised  that  they  would  pay  the  sum  which  Parrie 
owed  to  the  plaintiff;  and  alleged  that  Parrie  permitted  them  to  sue, 
and  that  they  recovered.  After  non-assumpsit  pleaded,  and  a  verdict 
for  the  plaintiff,  it  was  moved  in  arrest  of  judgment  that  the  plaintiff 
could  not  bring  his  action,  for  he  was^a  stranger  to  the  consideration. 

But  in  maintenance  thereof,  a  judgroent  was  cited  in  1658,  bFt^reefi 
Sprat  and  Agar,  in  the  King's  Bench,  where  one  promised  to  the  father, 
in  consideration  that  he  would  give  his  daughter  in  marriage  with  his 
son,  he  would  settle  so  much  land.  After  the  marriage  the  son  brought 
the  action  ;  and  it  was  adjudged  maintainable.  And  another  case  was 
cited  of  a  promise  to  a  physician,  that  if  he  did  such  a  cure  he  would 
give  such  a  sum  of  money  to  himself  and  another  to  his  daughter ;  and 
it  was  resolved  the  daughter  might  bring  an  assumpsit.  Which  cases 
the  court  agreed :  for  in  the  one  case  the  parties  that  brought  the  as- 
sumpsit did  the  meritorious  act,  though  the  promise  was  made  to 
another ;  and  in  the  other  case,  the  nearness  of  the  relation  gives  tne 
daughter  the  benefit  of  the  consideration  performed  by  her  father ;  but 
here  the  plaintiff  did  nothing  of  trouble  to  himself  or  benefit  to  the  de- 
fendant, but  is  a  mere  stranger  to  the  consideration ;  wherefore  it  was 
adjudged  quod  nil  capiat  per  biUam. 

1  The  cases  on  this  subject  are  collected  and  discussed  in  15  Ilarv.  L.  Rev.  767. 
The  rules  of  the  Roman  Law  and  the  provisions  o£  mo<iern  European  Codes  may  be 
found  in  16  Harv.  L.  Rev.  43. 


384  BUTTON   V.   POOLE.  [CHAP.   HI. 

BUTTON   AND   Wife   v.   POOLE. 
In  the  King's  Bench,  Michaelmas  Term,   1677. 

[Reported  in  2  Levinz,  210.] 

Assumpsit,  and  declares  that,  the  father  of  the  plaintiff's  wife  being 
seised  of  a  wood,  which  he  intended  to  fell  to  raise  portions  for  younger 
children,  the  defendant,  being  his  heir,  in  consideration  the  father  would 
forbear  to  fell  it  at  hi?  :  iquest,  promised  the  father  to  pay  his  daughter, 
now  the  plaintiff's  wife,  1000/.,  and  avers  that  the  father  at  his  request 
forbore ;  but  the  defendant  had  not  paid  the  1000/.  After  verdict  for 
the  plaintiff  upon  non-assumpsit,  it  was  moved  in  arrest  of  judgment,  that 
the  action  ought  not  to  be  brought  by  the  daughter,  but  by  the  father ; 
or,  if  the  father  be  dead,  by  his  executors ;  for  the  promise  was  made 
to  the  father,  and  the  daughter  is  neither  privy  nor  interested  in  the 
consideration,  nothing  being  due  to  her :  also  the  father,  notwithstand- 
ing this  agreement  with  the  son,  might  have  cut  down  the  wood,  and 
then  there  was  no  remedy  for  the  son,  nor  could  the  daughter  have 
released  the  promise,  and  therefore  she  cannot  have  an  action  against 
him  for  not  performing  the  promise.  .  .  .  On  the  other  side  it  was  said, 
if  a  man  deliver  goods  or  money  to  A.  to  deliver  or  pay  to  B.,  B.  may 
have  an  action,  because  he  is  to  have  the  benefit  of  the  bailment ;  so 
here  the  daughter  is  to  have  the  benefit  of  the  promise :  so  if  a  man 
should  say.  Give  me  a  horse,  I  will  give  your  son  10/.,  the  son  may 
bring  the  action,  because  the  gift  was  upon  consideration  of  a  profit  to 
the  son,  and  the  father  is  obliged  by  natural  affection  to, provide  for  hia 
children  ;  for  which  cause,  affection  to  children  is  sufficient  to  raise  a  use 
to  them  out  of  the  father's  estate  ;  and  therefore  the  daughter  had  an 
interest  in  the  consideration  and  in  the  promise  ;  and  the  son  had  a 
benefit  by  this  agreement,  for  b}^  this  means  he  hath  the  wood,  and  the 
daughter  is  without  a  portion,  which  otherwise  in  all  probability  the 
son  would  have  been  left  to  pa}',  if  the  wood  had  not  been  cut  down, 
nor  this  agreement  between  him  and  his  father.  .  .  .  Upon  the  first 
argument,  Wilde  and  Jones,  Justices,  seemed  to  think  that  the  action 
ought  to  be  brought  by  the  father  and  his  executors,  though  for  the 
benefit  of  the  daughter,  and  not  by  the  daughter,  being  not  privy  to 
the  promise  nor  consideration.  Twysden  and  Rainsford  seemed  contra  ; 
and  afterwards,  two  new  judges  being  made,  sciL,  Scroggs,  Chief  Jus- 
tice, in  lieu  of  Rainsford,  and  Dolben,  in  lieu  of  Twysden,  the  case  was 
argued  again  upon  the  reasons  aforesaid ;  and  now  Scroggs,  Chief  Jus- 
tice, said,  that  there  was  such  apparent  consideration  of  affection  from 
the  father  to  his  children,  for  whom  nature  obliges  him  to  provide,  that 
the  cons>ideration  and  promise  to  the  father  may  well  extend  to  the 
children.  .  .  .  Dolben,  Justice,  concurred  with  him  that  the  daughter 
might  bring  the  action  ;  Jones  and  Wylde  hcesitabant.  But  next  day 
they  also  agreed  to  the  opinion  of  the  Chief  Justice  and  Dolben  ;  and  so 


SECT.   I.]  TWEDDLE   V.   ATKINSON.  385 

judgment  was  given  for  the  plaintiff,  for  the  son  hath  the  benefit  by 
having  of  the  wood,  and  the  daughter  hath  lost  her  portion  by  this 
means.  .  .  .  And  nota,  upon  this  judgment  error  was  immediately 
brought;  and  Trin.,  31  Car.  2,  it  was  affirmed  in  the  Exchequer 
Chamber.  . 


4^/^ 


TWEDDLE  V.  ATKINSON,  Exectjtob  of  GUY,  Deceased.  ^^  (^O^UL, 
In  the  Queen's  Bench,  June  7,  1861. 

[Reported  in  1  Best  ^  Smith,  393.] 

The  declaration  stated  that  the  plaintiff  was  the  son  of  John  Twed- 
dle,  deceased,  and  before  the  making  of  the  agreement  hereafter  men- 
tioned, married  the  daughter  of  William  Guy,  deceased ;  and  before 
the  said  marriage  of  the  plaintiff  the  said  William  Guy,  in  considera- 
tion of  the  then  intended  marriage,  promised  the  plaintiff  to  give  to 
his  said  daughter  a  marriage  portion,  but  the  said  promise  was  verbal, 
and  at  the  time  of  the  making  of  the  said  agreement  had  not  been 
performed,  and  before  the  said  marriage  the  said  John  Tweddle,  in 
consideration  of  the  said  intended  marriage,  also  verball\-  promised 
to  give  the  plaintiff  a  marriage  portion,  which  promise  at  the  time 
of  the  making  of  the  said  agi*eement  had  not  been  performed.  It 
then  alleged  that  after  the  marriage  and  in  the  lifetime  of  the  said 
William  Guy,  and  of  the  said  John  Tweddle,  they,  the  said  William 
Guy  and  John  Tweddle,  entering  into  the  agreement  hereafter  men- 
tioned as  a  mode  of  giving  effect  to  their  said  verbal  promises ;  and 
the  said  William  Gu}'  also  entering  into  the  said  agreement  in  order 
to  provide  for  his  said  daughter  a  marriage  portion,  and  to  procure  a 
further  provision  to  be  made  b}'  the  said  John  Tweddle,  by  means  of 
the  said  agreement,  for  his  said  daughter,  and  acting  for  the  benefit 
of  his  said  daughter ;  and  the  said  John  Tweddle  also  entering  into 
the  said  agreement  in  order  to  provide  for  the  plaintiff  a  marriage 
portion,  and  to  procure  a  further  provision  to  be  made  by  the  said 
WilUam  Guy,  by  means  of  the  said  agreement,  for  the  plaintiff,  and 
acting  for  the  benefit  of  the  plaintiff;  they  the  said  William  Gu}'  and 
John  Tweddle  made  and  entered  into  an  agreement  in  writing  in  the 
words  following,  that  is  to  say  : 

High  Coniscliffe,  July  11,  1855. 

Memorandum  of  an  agreement  made  this  day  between  William  Guy,  of,  &c., 
of  the  one  part,  and  John  Tweddle,  of,  &c.,  of  the  other  part.  AVhereas  it  is 
mutually  agreed  that  the  said  William  Guy  shall  and  will  pay  the  sum  of  200/. 
to  William  Tweddle,  his  son-in-law;  and  the  said  John  Tweddle,  father  to  the 
aforesaid  William  Tweddle,  shall  and  wiU  pay  the  sum  of  100/.  to  the  said 
William  Tweddle,  each  and  severally  the  said  sums  on  or  before  the  2l3t  day 
of  August,  lb55.  And  it  is  hereby  further  a^rreed  by  the  aforesaid  William 
Guy  and  the  said  John  Tweddle  that  the  said  William  Tweddle  has  full  powei 
to  sue  the  said  parties  in  any  court  of  law  or  equity  for  the  aforesaid  sum. 
hereby  promised  and  specified. 

VOL.  I.  —  25 


386  TWEDDLE   V.   ATKINSON.  [CHAP.    III. 

And  the  plaintiff  says  that  afterwards  and  before  this  suit,  he  and 
his  said  wife,  who  is  still  living,  ratified  and  assented  to  the  said  agree- 
ment, and  that  he  is  the  William  Tweddle  therein  mentioned.  And 
the  plaintiff  says  that  the  said  twenty-first  day  of  August,  a.  d.  1855, 
elapsed,  and  all  things  have  been  done  and  happened  necessary  to 
entitle  the  plaintifl"to  have  the  said  sum  of  200Z.  paid  by  the  said  Wil- 
Uam  Gu}'  or  his  executors :  yet  neither  the  said  William  Guy  nor  his 
executor  has  paid  the  same,  and  the  same  is  in  arrear  and  unpaid,  con- 
traiy  to  the  said  agreement. 

Demurrer  and  joinder  therein. 

Edward  James,  for  the  defendant.  The  plaintiff  is  a  stranger  to  the 
agreement  and  to  the  consideration  as  stated  in  the  declaration,  :ind 
therefore  cannot  sue  upon  the  contract.  It  is  now  settled  that  an 
action  for  breach  of  contract  must  be  brought  by  the  person  from 
whom  the  consideration  moved :  Price  v.  Easton.  (He  was  then 
stopped.) 

Mellishy  for  the  plaintiff.  Admitting  the  general  rule  as  stated  by  the 
other  side,  there  is  an  exception  in  the  case  of  contracts  made  b}'  par- 
ents for  the  purpose  of  providing  for  their  children.  In  Dutton  and  Wife 
V.  Poole,  atlirmed  in  the  Exchequer  Chamber,  a  tenant  in  fee-simple 
being  about  to  cut  down  timber  to  raise  a  portion  for  his  daughter,  the 
defendant,  his  heir-at-law,  in  consideration  of  his  forbearing  to  fell  it, 
promised  the  father  to  pay  a  sum  of  money  to  the  daughter,  and  an  ac- 
tion of  assumpsit  by  the  daughter  and  her  husband  was  held  to  be  well 
brought.  [WiGHTMAN,  J.  In  that  case  the  promise  was  made  before 
marriage.  In  this  case  the  promise  is  post  nuptial,  and  the  whole  con- 
sideration on  both  sides  is  between  the  two  fathers.]  The  natural  rela- 
tionship between  the  father  and  the  son  constituted  the  father  an  agent  for 
the  son,  in  whose  behalf  and  for  whose  benefit  the  contract  was  made ; 
and  therefore  the  latter  may  maintain  an  action  upon  it.  [CROMFroN,  J. 
Is  the  son  so  far  a  party  to  the  contract  that  he  may  be  sued  as  well 
as  sue  upon  it?  Where  a  consideration  is  required  there  must  be 
mutuality.  Wightman,  J.  This  contract,  so  far  as  the  son  is  con- 
cerned, is  one-sided.]  The  object  of  the  contract,  which  was  that  the 
children  should  be  provided  for,  will  be  accomplished  if  this  action  is 
maintainable  :  whereas  if  the  right  of  action  remains  in  the  father  it 
will  be  defeated,  because  the  damages  recovered  in  that  action  will  be 
his  assets.  [Crompton,  J.  Your  argument  will  lead  to  this,  that 
the  son  might  bring  an  action  against  the  father  on  the  ground 
of  natural  love  and  affection.]  In  Bourne  v.  Mason  two  cases  are 
cited  which  support  this  action.  In  Sprat  v.  Agar,  in  the  King's 
Bench  in  1658,  one  promised  the  father  that,  in  consideration  that  he 
would  give  his  daughter  in  marriage  with  his  son,  he  would  settle  so 
much  land ;  after  the  marriage  the  son  brought  an  action,  and  it  was 
held  maintainable.  The  other  was  the  case  of  a  promise  to  a  physician 
that  if  he  did  such  a  cui-e  he  would  give  such  a  sum  of  money  to  him- 
self and  another  to  his  daughter,  and  it  was  resolved  the  daughter 


SECT.   I.]  TWEDDLE   V.    ATKINSON.  387 

might  bring  assumpsit,  "which  cases,"  says  the  report,  "the  Court 
agreed;  "  and  the  reason  assigned  as  to  the  latter  is,  "the  nearness  of 
the  relation  gives  the  daughter  the  benefit  of  the  consideration  per- 
formed by  her  father."  There  is  no  modern  case  in  which  the  question 
has  been  raised  upon  a  contract  between  two  fathers  for  the  benefit  of 
their  children.  [Wightman,  J.  If  the  father  of  the  plaintiff  had 
paid  the  100/.  which  he  promised,  might  not  he  have  sued  the  father 
of  the  plaintiff's  wife  on  his  express  promise?]  According  to  the  old 
cases  he  could  not.  When  a  father  makes  a  contract  for  the  benefit 
of  his  child,  the  law  vests  the  contract  in  the  child.     In  Thomas  v. 

,^  the  defendant  promised  to  a  father  that,  in  consideration  that  he 

would  surrender  a  copj'hold  to  the  defendant,  the  defendant  would  give 
unto  his  two  daughters  201.  apiece  ;  and  after  verdict  in  an  action 
upon  the  case  brought  b}'  one  of  the  daughters  for  breach  of  that  prom- 
ise, on  motion  for  arresting  the  judgment  on  the  ground  that  the  two 
ought  to  have  joined,  it  was  held  that  the  parties  had  distinct  intei*- 
ests,  and  so  each  might  bring  an  action. 

Edward  James  was  not  called  upon  to  reply. 

Wightman,  J.  Some  of  the  old  decisions  appear  to  support  the 
proposition  that  a  stranger  to  the  consideration  of  a  contract  may 
maintain  an  action  upon  it,  if  he  stands  in  such  a  near  relationship  to 
the  party  from  whom  the  consideration  proceeds,  that  he  may  be  con- 
sidered a  party  to  the  consideration.  The  strongest  of  those  cases  is 
that  cited  in  Bourne  v.  Mason,  in  which  it  was  held  that  the  daughter 
of  a  physician  might  maintain  assumpsit  upon  a  promise  to  her  father 
to  give  her  a  sum  of  mone}'  if  he  performed  a  certain  cure.  But  there 
is  no  modern  case  in  which  the  proposition  has  been  supported.  On 
the  contrary,  it  is  now  estabhshed  that  no  stranger  to  the  consideration 
can  take  advantage  of  a  contract,  although  made  for  his  benefit. 

Crompton,  J.  It  is  admitted  that  the  plaintiff  cannot  succeed  unless 
this  case  is  an  exception  to  the  modern  and  well-established  doctrine 
of  the  action  of  assumpsit.  At  the  time  when  the  cases  which  have 
been  cited  were  decided  the  action  of  assumpsit  was  treated  as  an 
action  of  trespass  upon  the  case,  and  therefore  in  the  nature  of  a  tort ; 
and  the  law  was  not  settled,  as  it  now  is,  that  natural  love  and  affec- 
tion is  not  a  sufficient  consideration  for  a  promise  upon  which  an  action 
may  be  maintained ;  nor  was  it  settled  that  the  promisee  cannot  bring 
an  action  unless  the  consideration  for  the  promise  moved  from  him. 
The  modern  cases  have,  in  effect,  oveiTuled  the  old  decisions ;  the}* 
show  that  the  consideration  must  move  from  the  party  entitled  to  sue 
upon  the  contract.  It  would  be  a  monstrous  proposition  to  say  that 
a  person  was  a  party  to  the  contract  for  the  purpose  of  suing  upon  it 
for  his  own  advantage,  and  not  a  party  to  it  for  the  purpose  of  being 
sued.  It  is  said  that  the  father  in  the  present  case  was  agent  for  the 
son  in  making  the  contract,  but  that  argument  ought  also  to  make  the 
son  liable  upon  it.     I  am  prepared  to  overrule  the  old  decisions,  and 

1  Sty.  461. 


888  NATIONAL  BANK  V.   GRAND   LODGE.         [CHAP.    HI. 

to  hold  that,  by  reason  of  the  principles  which  now  govern  the  action 
of  assumpsit,  the  present  action  is  not  maintainable. 

Blackburn,  J.  The  earlier  part  of  the  declaration  shows  a  con- 
tract which  might  be  sued  on,  except  for  the  enactment  in  sect.  4 
of  the  SLaiute  of  Frauds,  29  Car.  2,  c.  3.  The  declaration  then  sets 
out  a  new  contract,  and  the  onl}'  point  is  whether,  that  contract  being 
for  the  benefit  of  the  children,  they  can  sue  upon  it.  Mr.  Mellish 
atlmits  that  in  general  no  action  can  be  maintained  upon  a  promise, 
anless  the  i.x>nsideration  moves  from  the  party  to  whom  it  is  made. 
But  he  says  that  there  is  an  exception ;  namely,  that  when  the  con- 
sideration moves  from  a  father,  and  the  contract  is  for  the  benefit  of 
his  son,  the  natural  love  and  affection  between  the  father  and  son  gives 
the  son  the  right  to  sue  as  if  the  consideration  had  proceeded  from 
himself.  And  Button  and  Wife  v.  Poole  was  cited  for  this.  We 
cannot  oven-ule  a  decision  of  the  Exchequer  Chamber ;  but  there  is  a 
distinct  ground  on  which  that  one  cannot  be  supported.  The  cases 
upon  stat.  27  FA.  c.  4,  which  have  decided  that,  by  sect.  2,  volun- 
tary gifts  by  settlement  after  marriage  are  void  against  subsequent 
purchasers  for  value,  and  are  not  saved  by  sect.  4,  show  that  natural 
(ove  and  affection  are  not  a  sufficient  consideration  whereon  an  action 
of  assumpsit  may  be  founded. 

Judgment  for  the  defendant. 


NATIONAL  BANK  v.   GRAND  LODGE. 

Supreme  Court  of  the  United   States,  October  Term,  1878. 
[Reported  in  98  United  States,  123.] 

Error  to  the  Circuit  Court  of  the  United  States  for  the  Eastern 
tnstrict  of  Missouri. 

This  is  an  action  by  the  Second  National  Bank  of  St.  Louis,  Mis- 
souri, against  the  Grand  Lodge  of  Missouri  of  Free  and  Accepted 
Ancient  Masons,  to  compel  the  payment  of  certain  coupons  formerly 
attached  to  bonds  issued  in  June,  1869,  by  the  Masonic  Hall  Associa- 
tion, a  corporation  existing  under  the  laws  of  the  State  of  Missouri,  in 
relation  to  which  bonds  the  Grand  Lodge,  Oct.  14,  1869,  adopted  the 
following  resolution  :  — 

"  Hesolved,  That  this  Grand  Lodge  assume  the  payment  of  the  two 
hundred  thousand  dollars  bonds,  issued  by  the  Masonic  Hall  Associa- 
tion, provided  that  stock  is  issued  to  the  Grand  Lodge  b}'  said  associa- 
tion to  the  amount  of  said  assumption  of  payment  by  this  Grand  Lodge, 
as  the  said  bonds  are  paid." 

The  court  below  instructed  the  jury,  that,  independently  of  the  ques- 
tion of  the  power  of  the  Grand  Lodge  to  pass  the  resolution,  it  was 


SECT.    I.]  NATIONAL   BANK   V.   GRAND   LODGE.  389 

no  foundation  for  the  present  action,  and  directed  a  verdict  for  the 
defendant. 

The  jury  returned  a  verdict  in  accordance  with  the  direction  of  the 
court ;  and  judgment  having  been  entered  thereon,  the  plaintiff  sued 
out  this  writ  of  error. 

Mr.  Jbh?i  0.  Orrick,  for  the  plaintiff  in  error. 

Mr.  tTohn  D.  S.  Dry  den  ^  contra. 

Mr.  Justice  Strong  delivered  the  opinion  of  the  court :  — 

It  is  unnecessary-  to  consider  the  several  assignments  of  error  in 
detail,  for  there  is  an  insurmountable  difficult}'  in  the  way  of  the  plain- 
tiflTs  recover}'.     The  resolution  of  the  Grand  Lodge  was  but  ajmipesi— 
tion  made  to  the^Iasonic  Hall  Asspdatioav,ajld,  whigiFcgr^£^ed_^thjt 

Constituted  at  most-only-an  executory.i:mi: 


It  was  a  contract  made  for  the  benefit  of  the  associ- 
ation and  of  the  Grand  Lodge,  — made  that  the  latter  might  acquire 
the  ownership  of  stock  of  the  former,  and  that  the  former  might  obtain 
relief  from  its  liabilities.  The  holders  of  the  bonds  were  not  parties  to 
it,  and  there  was  no  privit\-  between  them  and  the  lodge.  They  may 
have  had  an  indirect  interest  in  the  performance  of  the  undertakings  of 
the  parties,  as  they  would  have  in  an  agreement  b}'  which  the  lodge 
should  undertake  to  lend  money  to  the  association,  or  contract  to  buy 
its  stock  to  enable  it  to  pay  its  debts  ;  but  that  is  a  very  dilTerent  thing 
from  the  privity  necessary-  to  enable  them  to  enforce  the  contract  b}' 
suits  in  their  own  names.  We  do  not  propose  to  enter  at  large  upon  |^^ 
consideration  of  the  inquiry  how  far  privity  of  contract  between  a  plaii^^^ 
tiff  and  defendant  is  necessar}'  to  the  maintenance  of  an  action  of  as- 
sumpsit. The  subject  has  been  much  debated,  and  the  decisions  are 
not  all  reconcilable.  No  doubt  the  general  rule  is  that  such  a  privity 
must  exist.  But  there  are  confessedly  man}'  exceptions  to  it.  One  of 
them,  and  by  far  the  most  frequent  one,  is  the  case  where,  under  a  con- 
tract between  two  persons,  assets  have  come  to  the  promisor's  hands  or 
under  his  control  which  in  equit}'  belong  to  a  third  person.  In  such 
a  case  it  is  held  that  the  third  person  may  sue  in  his  own  name.  But 
then  the  suit  is  founded  rather  on  the  implied  undertaking  the  law  raises 
from  the  possession  of  the  assets,  than  on  the  express  promise.  Another 
exception  is  where  the  plaintiff  is  the  beneficiar}'  solely  interested  in  the 
promise,  as  where  one  person  contracts  with  another  to  pav  money  or  de- 
liver some  valuable  thing  to  a  third.  But  where  a  debt  already  exists 
from  one  person  to  another,  a  promise  by  a  third  person  to  pa}'  such  debt 
being  primarily  for  the  benefit  of  the  original  debtor,  and  to  relieve  him 
from  liability  to  pay  it  (there  being  no  novation),  he  has  a  right  of  ac- 
tion against  the  promisor  for  his  own  indemnity  ;  and  if  the  original 
creditor  can  also  sue,  the  promisor  would  be  liable  to  two  separate 
actions,  and  therefore  the  rule  is  that  the  original  creditor  cannot  sue. 
His  case  is  not  an  exception  from  the  general  rule  that  privity  of  con- 
tract is  required.  There  are  some  other  exceptions  recognized,  but  they 
are  unimportant  now.    The  plaintiff's  case  is  within  none  of  them.   Nor 


390  BORDEN   V.   BOARDMAN.  [CHAP.   in. 

is  he  sole  beneficiary  of  the  contract  between  the  association  and  the 
Grand  Lodge.  The  contract  was  made,  as  we  have  said,  for  the  benefit 
of  the  association,  and  if  enforceable  at  all,  is  enforceable  by  it.  That 
the  several  bondholders  of  the  association  are  not  in  a  situation  to  sue 
upon  it  is  a[)parent  on  its  face.  Even  as  between  the  association  and 
the  Grand  Lodge,  the  latter  was  not  bound  to  pa^-  anything,  except  so 
far  as  stock  of  the  former  was  delivered  or  tendered  to  it.  The  prom- 
ise to  pay  and  the  promise  to  deliver  the  stock  were  not  independent 
of  each  other.  They  were  concurrent  and  dependent.  Of  tliis  there 
can  be  no  doubt.  The  resolution  of  the  lodge  was  to  assume  the  pa}-- 
ment  of  the  two  hundred  thousand  dollar  bonds,  issued  b}'  the  associa- 
tion, "  Provided,  that  stock  is  issued  to  the  Grand  Lodge  by  said 
association  to  the  amount  of  said  assumption,"  .  .  .  "  as  said  bonds 
are  paid."  Certainl}'  the  obligation  of  the  lodge  was  made  contingent 
upon  the  issue  of  the  stock,  and  the  consideration  for  payment  of  the 
debt  to  the  bondholders  was  the  receipt  of  the  stock.  But  the  bond- 
holders can  neither  deliver  it  nor  tender  it ;  nor  can  they  compel  the 
association  to  deliver  it.  If  they  can  sue  upon  the  contract,  and  en- 
force payment  b}'  the  Grand  Lodge  of  the  bonds,  the  contract  is  wholly 
changed,  and  the  lodge  is  compelled  to  pay  whether  it  gets  the  stock  or 
not.  To  this  it  cannot  be  presumed  the  lodge  would  ever  have  agreed. 
It  is  manifest,  therefore,  that  the  bondliolders  of  tiie  association  are  not 
in  such  privit3'  with  the  lodge,  and  have  no  such  interest  in  tlie  contract, 
as  to  warrant  their  bringing  suit  in  tlieir  own  names. 

Hence  the  present  action  cannot  be  sustained,  and  the  Circuit  Court 
correctly  directed  a  verdict  for  the  defendant. 

Judgment  affirmed. 


CLARA  H.  BORDEN  v,   JOHN  W.  BOARDMAN. 

Supreme  Judicial  Coukt  of  Massachusetts,  October  24  — 

November  25,  1892. 

[Reported  in  157  Massachusetts,  410.] 

Contract.  Trial  in  the  Superior  Court,  before  Brale}',  J.,  who 
reported  the  case  for  the  determination  of  this  court,  in  substance  as 
follows  :  — 

On  July  24,  1890,  Daniel  J.  Collins,  a  conti-actor,  made  a  contract 
in  writing  with  the  defendant  to  build  him  a  house  in  New  Bedford,  for 
the  sum  of  twenty-six  hundred  and  fifty  dollars,  payable  one  half  when 
the  house  was  ready  for  plastering,  the  balance  when  finished.  The 
defendant  advanced  to  Collins  two  hundred  dollars  before  the  first  pay- 
ment was  due,  taking  his  receipt  therefor.  During  the  progress  of  the 
work,'  and  before  the  first  payment  became  due  according  to  the  terms 
of  the  contract,  the  building  was  blown  off   the  foundation.     Collins 


SECT.   I.]  BORDEN   V.   BOARDMAN.  391 

employed  the  plaintiffs,  who  were  building  movers,  to  put  the  building 
back,  under  an  agreement  that  it  should  not  cost  more  than  one  hun- 
dred and  fifty  dollais  ;  the  plaintiffs  put  the  building  back,  finishing 
the  moving  a  montli  or  six  weeks  prior  to  the  first  payment.  Collins 
then  proceeded  with  the  work,  and  got  the  building  ready  to  plaster. 
When  the  time  for  the  first  payment  arrived  the  defendant  told  Collins 
he  would  like  to  have  all  persons  who  had  lienable  bills  against  the 
house  present  to  see  that  the}-  were  paid.  The  plaintiffs  were  not  pres- 
ent, so  the  defendant  asked  Collins  how  much  was  due  them,  and  was 
told  one  hundred  and  fifty  dollars.  The  defendant  thereupon,  at  the 
request  and  with  the  consent  of  Collins,  reserved  two  hundred  dollars 
for  the  plaintiffs,  saying  he  would  hold  this  mone}-  to  pay  them  with, 
and  would  paj-  them  himself.  Collins  thei-eupon  gave  the  defendant  a 
receipt  for  eleven  hundred  and  twent3'-five  dollars,  as  first  payment  on  the 
house.  Neither  Collins  nor  the  defendant  informed  the  plaintiffs  of  the 
holding  of  this  money  ;  but  in  consequence  of  what  a  third  person  told 
Manchester,  one  of  the  plaintiffs,  Manchester  called  upon  the  defendant, 
and  said  to  him,  "  I  understand  that  you  are  holding  m}'  mone}'  for  me 
for  moving  that  building  back.  Is  that  so?"  Boardman  replied  that 
it  was.  Manchester  then  said,  "  I  am  glad  that  you  have  got  it  and 
will  pay  it."  Boardman  said,  "  I  don't  know  as  I  will  now;  I  have 
been  advised  not  to."  No  other  interview  was  had  between  the  plain- 
tiffs and  the  defendant. 

The  defendant  claimed  that,  upon  this  evidence,  the  action  could  not 
be  maintained,  and  offered  to  show,  in  bar  of  the  action,  that,  a  day 
or  so  after  the  time  of  the  first  pa^'ment,  Collins  abandoned  and 
broke  his  said  contract,  and  the  defendant  was  obliged  to  finish  the 
building  at  a  loss,  and  that  at  the  time  of  refusing  to  pay  Manchester, 
he,  Manchester,  was  told  by  the  defendant  that  Collins  had  broken  his 
contract ;  and  that  on  December  9,  1890,  after  refusal  to  pay  them  by 
the  defendant,  the  plaintiffs  commenced  an  action  against  said  Collins 
for  the  recovery  of  the  claim  now  in  suit.  The  evidence  was  excluded. 
Tiie  judge  directed  a  verdict  for  the  plaintiffs  for  one  hundred  and  fifty 
dollars,  and  interest  from  the  date  of  the  writ.  If  the  ruling  was  right, 
then  judgment  was  to  be  entered  on  the  verdict ;  otherwise,  judgment 
for  the  defendant. 

F.  A.  Milliken^  for  the  defendant. 

E.  L.  Barney^  for  the  plaintiffs. 

MoRTOx,  J.  The  evidence  offered  in  bar  was  rightly  excluded.  The 
subsequent  failure  of  Collins  to  perform  his  contract  would  not  release 
the  defendant  from  the  obligation,  if  any,  which  he  had  assumed  to  the 
plaintiffs,  in  the  absence  of  any  agreement,  express  or  implied,  that  the 
money  was  to  be  paid  to  the  plaintiffs  only  in  case  Collins  fulfilled  his 
contract.  Cook  v.  Wolfendale,  105  Mass.  401.  There  was  no  evidence 
of  such  an  agreement. 

The  other  question  is  more  difficult.  The  case  does  not  present  a 
question  of  novation  ;  for  there  was  no  agreement  among  the  plaintiffs. 


392  BORDEN  V.   BOARDMAN.  [CHAP.  III. 

Collins,  and  the  defendant  that  the  defendant  should  pay  to  the  plain- 
tiffs, out  of  the  money  in  his  hands  and  due  to  Collins,  a  specific  sum, 
and  that  thenceforwai-d  the  defendant  should  be  released  from  all  liabil- 
ity for  it  to  Collins,  and  should  be  liable  for  It  to  the  plaintiffs.  Neither 
was  there  any  agreement  between  the  plaintiffs  and  the  defendant  that 
the  latter  would  pay  the  money  to  tliem.  The  conversation  between  one 
of  the  plaintiffs  and  the  defendant  cannot  be  construed  as  affording  evi- 
dence of  such  an  agreement.  Coupled  with  the  defendant's  admission 
tliat  he  was  holding  money  for  the  plaintiffs  was  his  repudiation  of  any 
liability  to  the  plaintiffs  for  it.  Neither  can  it  be  claimed  tliat  there  was 
an  equitable  assignment  of  the  amount  in  suit  from  Collins  to  the  plain- 
tiffs. There  was  no  order  or  transfer  given  by  him  to  them  ;  nor  was 
any  notice  of  the  arrangement  between  him  and  the  defendant  given  b3- 
him  to  the  plaintiffs.  Lazarus  v.  Swan,  147  Mass.  330.  The  case 
upon  this  branch,  therefore,  reduced  to  its  simplest  form,  is  one  of  an 
agreement  between  two  parties,  upon  sutlicient  consideration  it  may  be 
between  them,  that  one  will  pay,  out  of  funds  in  his  hands  belong- 
ing to  the  other,  a  specific  sum  to  a  third  person,  who  is  not  a  party  to 
the  agreement,  and  from  whom  no  consideration  moves.  It  is  well 
settled  in  this  State  that  no  action  lies  in  such  a  case  in  favor  of  such 
third  part}-  to  recover  the  money  so  held  of  the  part}'  holding  it.  Ex- 
change Bank  v.  Rice,  107  Mass.  37,  and  cases  cited ;  Rogers  v.  Union 
Stone  Co.,  130  Mass.  581 ;  New  England  Dredging  Co.  v.  Rockport 
Granite  Co.,  149  Mass.  381;  Marston  v.  Bigelow,  150  Mass.  45; 
Saunders  v.  Saunders,  154  Mass.  337.  Certain  exceptions  which  were 
supposed  to  exist  have  either  been  shown  not  to  exist,  or  have  been 
confined  within  narrower  limits.  Exchange  Bank  v.  Rice,  and  Marston 
V.  Bigelow,  ubi  supra. 

We  have  assumed  that  the  sum  which  the  defendant  agreed  with 
Collins  to  pa}-  the  plaintiffs  was  specific.  But  it  is  to  be  observed  that 
the  agreement  between  the  plaintiffs  and  Collins  was  that  it  should  not 
cost  more  than  one  hundred  and  fifty  dollars  to  put  the  building  back. 
Collins  told  the  defendant  that  that  sum  was  due  to  the  plaintiffs.  The 
defendant  reserved  two  hundred  dollars.  It  may  well  be  doubted,  there- 
fore, whether  the  defendant  had  in  his  hands  a  specific  sum  to  be  paid 
to  the  plaintiffs,  or  whether  he  agreed  with  Collins  to  hold  and  pay  the 
plaintiffs  a  specific  sum.  If  the  sum  was  not  specific,  the  plaintiffs  do 
not  claim,  as  we  understand  them,  that  they  can  recover. 

Judgment  for  the  defendant. 


SECT.   I-l  liAWRENCE    V.   FOX.  393 


LAWRENCE   v.   FOX. 
New  York  Court  of  Appeals  December,  1859. 

[Reported  in  20  Neiv  York,  268.] 

Appe\l  from  the  Superior  Court  of  the  Citj'  of  Buffalo.  On  the  trial 
before  Mr.  Justice  Masten  it  appeared  by  the  evidence  of  a  bystander 
that  one  Holly,  in  November,  1857,  at  the  request  of  the  defendant, 
loaned  and  advanced  to  him  $300,  stating  at  the  time  that  he  owed  that 
sum  to  the  plaintiff  for  mone}-  borrowed  of  him,  and  had  agreed  to  pa}' 
it  to  him  the  then  next  day  ;  that  the  defendant  in  consideration  thereof, 
at  the  time  of  receiving  the  mone}',  promised  to  pay  it  to  the  plaintift 
the  then  next  da}'.  Upon  this  state  of  facts  the  defendant  moved  for 
a  nonsuit,  upon  three  several  grounds,  viz.  :  that  there  was  no  proof 
tending  to  show  that  Holly  was  indebted  to  the  plaintiff;  that  the  agree- 
ment by  the  defendant  with  Holly  to  pay  the  plaintiff  was  void  for  want 
of  consideration  ;  and  that  there  was  no  privity  between  the  plaintiff  and 
defendant.  The  court  overruled  the  motion,  and  the  counsel  for  the 
defendant  excepted.  The  cause  was  then  submitted  to  the  jury,  and 
they  found  a  verdict  for  the  plaintiff  for  the  amount  of  the  loan  and  in- 
interest,  $344.66,  upon  which  judgment  was  entered  ;  from  which  the 
defendant  appealed  to  the  Superior  Court,  at  General  Term,  where  the 
judgment  was  affirmed,  and  the  defendant  appealed  to  this  court.  The 
cause  was  submitted  on  printed  arguments. 

J.  iS.  Torrance,  for  the  appellant. 

£J.  P.  Chapin,  for  the  plaintiff. 

H.  Gray,  J.  The  first  objection  raised  on  the  trial  amounts  to  this : 
That.  f||P  pvirlonne  of  tlig^erson  present  who  heard  the  declarations  of 
Hfilly_giviiig_-dii^otiQns_as  to  ^thejpaj'ment  of  the  monev  lie-3ya&,JLben 
advancing  to  the  defendant  was  mere  hear.sax»-.and  thereforejiatLCPmr. 
_petent.  Had  the  plaintiff  sued  Holly  for  this  sum  of  money  no  objec- 
tion to  the  competency  of  this  evidence  would  have  been  thought  of; 
and  if  the  defendant  had  performed  his  promise  by  pa3ing  the  sum 
loaned  to  him  to  the  plaintiff,  and  Holly  had  afterwards  sued  Jiim  for 
its  recovery,  and  this  evidence  had  been  offered  by  the  defendant,  it 
would  doubtless  have  been  received  without  an  objection  from  any 
source.  All  the  defendant  had  the  right  to  demand  in  this  case  was 
evidence  which,  as  between  HoU}'  and  the  plaintiff,  was  competent  to 
establish  the  relation  between  them  of  debtor  and  creditor.  For  that 
purpose   the  evidence  was   clearly  competent ;    it   covered   the  whole 

ground,  and  warranted  the  verdict  of  the  jury.     Rut,  i^,  is  claimed  that 

notwithstanding  this  promise  was  paf-ah1i,shpd  ^'  f^f^mpptont  pvulpnf^t, 
was  void  foi~tlie  want  of  consideration.  It  is  now  more  than  a  quarter 
of  a  century  since  it  was  settled  bytHe  Supreme  Court  of  this  State  — 
in  an  able  and  pains-taking  opinion  by  the  late  Chief  Justice  Savage, 
in  which  the  authorities  were  fully  examined  and  carefully  analyzed  — • 


394  LAWRENCE  V.  FOX.  [CHAP.   ITL 

that  a  promise  in  all  material  respects  like  the  one  under  consideration 

was  valid  ;  and  the  judgment  of  that  court  was  unanimousl}'  affirmed  bj- 
the  Court  for  the  Correction  of  Errors  (Farley  v.  Cleavcland,  4  Cow. 
432;  same  case  in  error,  9  id.  639).  In  that  case  one  IMoon  owed 
Farley  and  sold  to  Cleavcland  a  quantity  of  hay,  in  consideration  of 
which  Cleavcland  promised  to  pa}'  Moon's  debt  to  Farley  ;  and  the  de- 
cision in  favor  of  Farley's  right  to  recover  was  placed  upon  the  ground 
that  the  hay  received  by  Cleaveland  from  Moon  was  a  valid  considera- 
tion for  Cleaveland's  promise  to  pay  Farley,  and  that  the  subsisting 
liability  of  Moon  to  pa}'  Farley  was  no  objection  to  the  recovery.  The 
fact  that  the  money  advanced  by  Holly  to  the  defendant  was  a  loan  to 
hira  for  a  day,  and  that  it  thereby  became  the  property  of  the  defend- 
ant, seemed  to  impress  the  defendant's  counsel  with  the  idea  that  be- 
cause the  defendant's  promise  was  not  a  trust  fund  placed  by  the 
plaintiff  in  the  defendant's  hands,  out  of  which  he  was  to  reahze  money 
as  from  the  sale  of  a  chattel  or  the  collection  of  a  debt,  the  promise, 
although  made  for  the  benefit  of  the  plaintiff,  could  not  enure  to  his 
benefit.  The  hay  which  Moon  delivered  to  Cleaveland  was  not  to  be 
paid  to  Farley,  but  the  debt  incurred  by  Cleaveland  for  the  purchase  of 
the  hay,  like  the  debt  incurred  by  the  defendant  for  money  borrowed, 
was  what  was  to  be  paid.  That  case  has  been  often  referred  to  by  the 
courts  of  this  State,  and  has  never  been  doubted  as  sound  authority  for 
the  principle  upheld  by  it.  Barker  v.  Bucklin,  2  Denio,  45  ;  Hudson  Canal 
Company  v.  The  Westchester  Bank,  4  id.  97.  It  puts  to  rest  the  ob- 
jeciion  that  the  defendant's  promise  wns  va\f\  for  want;  of  consideration. 
The  report  of  that  case  shows  thai  the  promise  was  not  onl}'  niade~1x) 
Moon,  but  to  the  plaintitf  Farley.  In  this  case  the  promise  was  made 
to  Holly,  and  not  expressly  to  the  plaintiff;  and  this  difference  between 
the  two  cases  presents  the  question,  raised  by  the  defendant's  objection, 
as  to  the  want  of  privity  between  the  plaintiff  and  defendant.  As  early 
as  1806  it  was  announced  by  the  Supreme  Court  of  this  State,  upon 
what  was  then  regarded  as  the  settled  law  of  England,  '■'■  that  -^h^re 
one  person  makes  a  promise  to  another  for  the  benefit  of  a  third  pej:saH, 
tliat  third  person  may  maintain  an  action  upon  it."  Schermerhorn 
V.  Vanderheyden,  1  John.  R.  140,  has  often  been  reasserted  by  our 
courts  and  never  departed  from.  The  case  of  Seaman  v.  White  has  oc- 
casionally been  referred  to  (but  not  by  the  courts)  not  only  as  having 
some  bearing  upon  the  question  now  under  consideration,  but  as  involv- 
ing in  doubt  the  soundness  of  the  proposition  stated  in  Schermerhorn 
V.  Vanderheyden.  In  that  case  one  Hill,  on  the  17th  of  August,  1835, 
made  his  note  and  procured  it  to  be  indorsed  by  Seaman  and  discounted 
by  the  Phoenix  Bank.  Before  the  note  matured,  and  w'hile  it  was  owned 
by  the  Phoenix  Bank,  Hill  placed  in  the  hands  of  the  defendant  Whit- 
ney his  draft  accepted  by  a  third  party,  which  the  defendant  indorsed, 
and  on  the  7th  of  October,  1835,  got  discounted  and  placed  the  avails 
in  the  hands  of  an  agent  with  which  to  take  up  Hill's  note  ;  the  note 
became  due,  Whitney  withdrew  the  avails  of  the  draft  from  the  hands 


SECT,    l]  LAWRENCE   V.    FOX.  895 

of  his  agent  and  appropriated  it  to  a  debt  due  him  from  Hill,  and  Sea- 
man  paid  the  note  indorsed  l\y  him  and  brought  his  suit  against  Whit- 
ney. Upon  this  state  of  facts  appearing,  it  was  held  that  Seaman 
could  not  recover :  first,  for  the  reason  that  no  promise  had  been  made 
b.y  Whitney  to  pay  ;  and  second,  if  a  promise  could  be  implied  from  the 
facts  that  Hill's  accepted  draft,  with  which  to  raise  the  means  to  pay 
the  note,  had  been  placed  b}-  Hill  in  the  hands  of  Whitnej-,  the  promise 
would  not  be  to  Seaman,  but  to  the  Phoenix  Bank,  who  then  owned  the 
note  ;  although,  in  the  course  of  the  opinion  of  the  court,  it  was  stated 
that,  in  all  cases  the  principle  of  which  was  sought  to  be  applied  to 
that  case,  the  fund  had  been  appropriated  b^'  an  express  undertak- 
ing of  the  defendant  with  the  creditoi*.  But  before  concluding  the 
opinion  of  the  court  in  this  case,  the  learned  judge  who  delivered  it 
conceded  that  an  undertaking  to  pa}'  the  creditor  ma}'  be  implied  from 
an  arrangement  to  that  effect  between  the  defendant  and  the  debtor. 
This  question  was  subsequently,  and  in  a  case  quite  recent,  again  the 
subject  of  consideration  by  the  Supreme  Court,  when  it  was  held  that 
in  rlpplnrinp-  npon  a.  promise^  made  to  the  debtor  by  a  third  party  to  pay 
tbe_creditor  of  the  debtor,  founded  upon  a  consideration  advanced,  b}^ 
^e  debtor>it  was  unnecpssary  to  ayer  a  promise  to  the  crgdit^r  ;  for  the 
reason  that  upon  proof  of  a  promise  made  to  the  debtor  to  pay  the 
creditor  a  promise  to  the  creditor  would  be  implied.  And  in  support 
of  this  proposition,  in  no  respect  distinguishable  from  the  one  now 
under  consideration,  the  case  of  Schermerhorn  v.  Vanderheyden,  with 
many  intermediate  cases  in  our  courts,  were  cited,  in  which  the  doctrine 
of  that  case  was  not  only  approved  but  affirmed.  The  Delaware  and 
Hudson  Canal  Company  v.  The  Westchester  County  Bank,  4  Ueuio,  97. 
The  same  principle  is  adjudged  in  several  cases  in  Massachusetts.  I  will 
refer  to  but  few  of  them,  —  Arnold  v.  Lyman,  17  Mass.  400  ;  Hall  v. 
Marston,  id.  575  ;  Brewer  v.  Dyer,  7  Cush.  337,  340.  In  Hall  v.  Marstou 
the  court  say  :  "  It  seems  to  have  been  well  settled  that,  if  A.  promises 
B.  for  a  favorable  consideration, to  l^M-P-?  the  latter  may  maintain  as- 
^umpsit_Jbr  thft-  mr^rj^y  •  "  and  in  Brewer  v.  Dyer  the  recovery  was 
upheld,  as  the  court  said,  '•  upon  the-orinciple  of  law  long  recognized 
and  clearly  established,  that  when  one  person.  JQi-aTvalTiaBIe  COnsldCTa-^ 
tion^  en  Of  ages  with  another,  by  a  simple  contract,  to  do  some  act  lor 
the  benefit  otLa  third,  the  latteivJ^liiLffiiiUld  enjoy  the  benefit  of  the  act.», 
ijaay  maintain  a  a  action  for  the  breach  of-sudjuenomgement ;  that  it  does 
not  rest  upon  the  ground  of  any  actual  or  supposed  relationship  be- 
tween the  parties  as  some  of  the  earlier  cases  would  seem  to  indicate, 
but  upon  the  broader  and  more  satisfactory  basis  that  the  law  operating 
on  the  act  of  tlie  parties  creates  the  duty,  establishes  a  privity,  and  im- 
plies the  promise  and  obligation  on  which  the  action  is  founded."  There 
is  a  more  recent  case  decided  by  the  same  court,  to  which  the  defendant 
has  referred  and  claims  that  it  at  least  impairs  the  force  of  the  former 
cases  as  authority.  It  is  the  case  of  Mellen  v.  Whipple,  1  Gray,  317. 
In  that  case  one  Rollins  made  his  note  for  $500,  payable  to  Ellis  and 
Mayo,  or  order,  and  to  secure  its  payment  mortgaged  to  the  payees  a 


396  LAWRENCE  V.    FOX.  [CHAP.    HI. 

certain  lot  of  ground,  and  then  sold  and  conveyed  the  mortgaged  prem- 
ises to  the  defendant  by  deed,  in  which  it  was  stated  that  the  "  granted 
premises  were  subject  to  a  mortgage  for  $500,  which  mortgage,  with 
the  note  for  which  it  was  given,  the  said  Whipple  is  to  assume  and 
cancel."  The  deed  thus  made  was  accepted  bj'^  Whipple,  the  mortgage 
was  afterwards  dul}-  assigned,  and  the  note  indorsed  by  Ellis  and  Ma3-o 
to  the  plaintiffs  intestate.  After  Whipple  received  the  deed  he  paid 
to  the  mortgagees  and  their  assigns  the  interest  upon  the  mortgage  and 
note  for  a  time,  and  upon  refusing  to  continue  his  payments  was  sued 
b}^  the  plaintiff  as  administratrix  of  the  assignee  of  the  mortgage  and 
note.  The  court  held  that  the  stipulation  in  the  deed  that  Whipple 
should  pay  the  mortgage  and  note  was  a  matter  exclusively  between 
the  two  parties  to  the  deed ;  that  the  sale  b}'  Rollins  of  the  equitj'  of 
redemption  did  not  lessen  the  plaintiff's  security  ;  and  that  as  nothing 
had  been  put  into  the  defendant's  hands  for  the  purpose  of  meeting  the 
plaintiff's  claim  on  Rollins,  there  was  no  consideration  to  support  aij 
express  promise,  much  less  an  implied  one,  that  Whipple  should  pay 
Mellen  the  amount  of  the  note.  This  is  all  that  was  decided  in  that 
case,  and  the  substance  of  the  reasons  assignor!  for  the  decision  ;  and 
whether  the  case  was  rightl}-  disposed  of  or  not,  it  has  not  in  its  facts 
an}'  analogy  to  the  case  before  us,  nor  do  the  reasons  assigned  for  the 
decision  bear  in  any  degree  upon  the  question  we  are  now  considering. 
But  it  is  urged  that  because  the  defendant  was  not  in  any  sense  a  trus- 
tee of  the  property  of  H0II3'  for  the  benefit  of  the  plaintiff,  the  law  will 
not  imply  a  promise.  I  agree  that  many  of  the  cases  where  a  promise 
was  implied  were  cases  of  trusts,  created  for  the  benefit  of  the  prom- 
isor. The  case  of  Felton  v.  Dickinson,  10  Mass.  287,  290,  and  others  that 
might  be  cited,  are  of  that  class  ;  but  concede  them  all  to  have  been 
cases  of  trusts,  and  it  proves  nothing  against  the  application  of  the  rule 
to  this  case.  The  dut}-  of  the  trustee  to  pay  the  cestuis  que  trusty 
according  to  the  terms  of  the  trust,  implies  his  promise  to  the  latter  to 
do  so.  In  this  case  the  defendant,  upon  ample  consideration  received 
from  Holl}',  promised  H0II3'  to  pay  his  debt  to  the  plaintiff;  the  con- 
sideration received  and  the  promise  to  Holly  made  it  as  plainly  his 
duty  to  pay  the  plaintiff  as  if  the  money  had  been  remitted  to  him  for 
that  purpose,  and  as  well  implied  a  promise  to  do  so  as  if  he  liad  been 
made  a  trustee  of  property  to  be  converted  into  cash  with  which  to  pa}'. 
The  fact  that  a  breach  of  the  dut}'  imposed  in  the  one  case  ma}'  be 
visited,  and  justl}',  with  more  serious  consequences  than  in  the  other, 
by  no  means  disproves  the  payment  to  be  a  dut}'  in  both.  The  prin- 
ciple illustrated  by  the  example  so  frequently  quoted  (which  concisel}' 
states  the  case  in  hand)  "  that  a  promise  made  to  one  for  the  benefit  of 
another,  he  for  whose  benefit  it  is  made  may  bring  an  action  for  its 
breach,"  has  been  applied  to  trust  cases,  not  because  it  was  exclusively 
applicable  to  those  cases,  but  because  it  was  a  principle  of  law,  and  as 
such  applicable  to  those  cases.  It  was  also  insisted  that  Holly  could 
have  discharged  the  defendant  from  his  promise,  though  it  was  intended 
by  both  parties  for  the  benefit  of  the  plaintiff,  and  therefore  the  plaintiflf 


SECT.   I.]  LAWRENCE   V.   FaX.  397 

was  not  entitled  to  maintain  this  suit  for  the  recoverj'of  a  demand  over 
which  he  had  no  control.  It  is  enough  that  the  plaintitf  did  not  release 
the  defendant  from  his  promise,  and  whether  he  could  or  not  is  a  ques- 
tion not  now  necessarily-  involved  ;  but  if  it  was,  I  think  it  would  be 
found  difficult  to  maintain  the  right  of  HoU}*  to  discharge  a  judgment 
recovered  by  the  plaintiff  upon  confession  or  otherwise,  for  the  breach  of 
the  defendant's  promise  :  and  if  he  could  not,  how  could  he  discharge 
the  suit  before  judgment,  or  the  promise  before  suit,  made  as  it  was 
for  the  plaintiff's  benefit,  and  in  accordance  with  legal  presumption  ac- 
cepted b}'  him  (Berly  v.  Taj'lor,  5  Hill,  577-584,  et  seg.),  until  his  dis- 
sent was  shown?  The  cases  cited,  and  especiall}'  that  of  Farley  y. 
Cleaveland,  establish  the  validit}'  of  a  parol  promise ;  it  stands  then 
upon  the  footing  of  a  written  one.  Suppose  the  defendant  had  given 
bis  note,  in  which,  for  value  received  of  Holly,  he  had  promised  to  pay 
the  plaintiff,  and  the  plaintiff  had  accepted  the  promise,  retaining  Holly's 
liabilit}'.  Ver\'  clearl}'  Holly  could  not  have  discharged  that  promise, 
be  the  right  to  release  the  defendant  as  it  may.  No  one  can  doubt  that 
he  owes  the  sum  of  money  demanded  of  him,  or  that  in  accordance 
with  his  promise  it  was  his  duty  to  have  paid  it  to  the  plaintiff;  nor  can 
it  be  doubted  that  whatever  may  be  the  diversity'  of  opinion  elsewhere, 
the  adjudications  in  this  State,  from  a  ver^-  early  period,  approved  by 
experience,  have  established  the  defendant's  liability  ;  if,  therefore,  it 
could  be  shown  that  a  more  strict  and  technicall}'  accurate  application 
of  the  rules  applied  would  lead  to  a  different  result  (which  I  by  no 
means  concede),  the  effort  should  not  be  made  in  the  face  of  manifest 
justice. 

The  judgment  should  be  affirmed. 

Johnson,  C.  J.,  Denio,  Selden,  Allen,  and  Strong,  JJ.,  concur- 
red. Johnson,  C.  J.,  and  Denio,  J.,  were  of  opinion  that  the  promise 
was  to  be  regarded  as  made  to  the  plaintiff  through  the  medium  of  his 
agent,  whose  action  he  could  ratify  when  it  came  to  his  knowledge, 
though  taken  without  his  being  privy  thereto. 

CoMSTOCK,  J.,  dissenting:  The  plaintiff  had  nothing  to  do  with  the 
promise  on  which  he  brought  this  action.  It  was  not  made  to  him,  nor 
did  the  consideration  proceed  from  him.  If  he  can  maintain  the  suit,  it 
is  because  an  anomalj'  has  found  its  way  into  the  law  on  this  subject. 
In  general,  there  must  be  privity  of  contract.  The  part}*  who  sues  upon 
a  promise  must  be  the  promisee,  or  he  must  have  some  legal  interest  in 
the  undertaking.  In  this  case  it  is  plain  that  Hollv,  who  loaned  the 
money  to  the  defendant,  and  to  whom  the  promise  in  question  was 
made,  could  at  any  time  have  claimed  that  it  should  be  performed  to 
himself  personall}'.  He  had  lent  the  monej'  to  the  defendant,  and  at 
the  same  time  directed  the  latter  to  pa}-  the  sum  to  the  plaintiff.  This 
direction  he  could  countermand,  and  if  he  had  done  so,  manifesth-  the 
defendant's  promise  to  pay  according  to  the  direction  would  have  ceased 
to  exist.  The  plaintiff  would  receive  a  benefit  by  a  complete  execution 
of  the  arrangement,  but  the  arrangement  itself  was  between  other  par- 


398  LA  WHENCE   V.    FOX.  [CHAP.    in. 

ties,  and  was  under  their  exclusive  control.  If  the  defendant  had  paid 
the  money  to  Holly,  his  debt  would  have  been  discharged  thereby.  So 
Holly  might  have  released  the  demand  or  assigned  it  to  another  person, 
or  the  parties  might  have  annulled  the  promise  now  in  question,  and 
designated  some  other  creditor  of  Holly  as  the  party  to  whom  the 
mone}'  should  be  paid.  It  has  never  been  claimed  that  in  a  case  thus 
situated  the  right  of  a  third  person  to  sue  upon  the  promise  rested  on 
any  sound  principle  of  law.  We  are  to  inquire  whether  the  rule  has 
been  so  established  b}-  positive  authority'. 

The  cases  which  have  sometimes  been  supposed  to  have  a  bearing  on 
this  question  are  quite  numerous.  In  some  of  them  the  dicta  of  judges 
delivered  upon  very  slight  consideration  have  been  referred  to  as  the 
decisions  of  the  courts.  Thus,  in  Schermerhorn  v.  Vanderhe3-den,  1 
Johns.  140,  the  court  is  reported  as  saying,  "  "We  are  of  opinion  that 
where  one  person  makes  a  promise  to  another  for  the  benefit  of  a  third 
person,  that  third  person  may  maintain  an  action  on  such  promise." 
This  remark  was  made  on  the  authority  of  Button  v.  Poole,  Vent.  318, 
332,  decided  in  England  nearly  two  hundred  j^ears  ago.  It  was,  however, 
but  a  mere  remark,  as  the  case  was  determined  against  the  plaintiff 
on  another  ground.  Yet  this  decision  has  often  been  referred  to  as 
authority  for  similar  observations  in  later  cases. 

lu  another  class  of  cases,  which  have  been  sometimes  supposed  to 
favor  the  doctrine,  the  promise  was  made  to  the  person  who  brought  the 
suit,  while  the  consideration  proceeded  from  another ;  the  question  con- 
sidered being  whether  the  promise  was  void  by  the  Statute  of  Frauds. 
Thus,  in  Gold  r.  Phillips,  10  Johns.  412,  one  Wood  was  indebted  to  the 
plaintiffs  for  services  as  attorneys  and  counsel,  and  he  conveyed  a  farm 
to  the  defendants,  who,  as  part  of  the  consideration,  were  to  pay  that 
debt.  Accordingly  the  defendants  wrote  to  the  plaintiffs  informing 
them  that  an  arrangement  had  been  made  by  which  the}'  were  to  pay 
the  demand.  The  defence  was  that  the  promise  was  void  within  the 
statute,  because,  although  in  writing,  it  did  not  express  the  considera- 
tion. But  the  action  was  sustained  on  the  ground  that  the  undertaking 
was  original,  and  not  collateral.  So  in  the  case  of  Farley  v.  Cleave- 
land,  4  Cow.  432,  9  id.  639,  the  facts  proved  or  offered  to  be  proved 
were  that  the  plaintiff  held  a  note  against  one  Moon  ;  that  Moon  sold 
hay  to  the  defendant,  who  in  consideration  of  that  sale  promised  the 
plaintiff  by  parol  to  pay  the  note.  The  only  question  was  whether  the 
Statute  of  Frauds  applied  to  the  case.  It  was  held  b}'  the  Supreme 
Court,  and  afterwards  by  the  Court  of  Errors,  that  it  did  not.  Such  is 
also  precisely  the  doctrine  of  EUwood  v.  Monk,  5  Wend.  235,  where  it 
was  held  that  a  plea  of  the  Statute  of  Frauds  to  a  count  upon  a  promise 
of  the  defendant  to  the  plaintiff  to  pay  the  latter  a  debt  owing  to  him 
by  another  person,  the  promise  being  founded  on  a  sale  of  property  to 
the  defendant  b}'  the  other  person,  was  bad. 

The  cases  mentioned,  and  others  of  a  like  character,  were  referred  to 
by  Mr.  Justice  Jewett  in  Barker  v.  Bueklin,  2  Dcnio,  45.  In  that  case 
the  learned  justice  considered  at  some  length  the  question  now  before 


SECT.   I.]  LAWRENCE  V.   FOX.  899 

US.  The  authorities  referred  to  were  mainly  those  which  I  have  cited, 
and  others,  upon  the  Statute  of  Frauds.  The  case  decided  nothing  on 
the  present  subject,  because  it  was  determined  against  the  plaintiff  on  a 
ground  not  involved  in  this  discussion.  The  doctrine  was  certainly  ad- 
vanced which  the  plaintiff  now  contends  for,  but  among  all  the  decisions 
which  were  cited,  I  do  not  think  there  is  one  standing  directlj'  upon  it. 
The  case  of  Arnold  v.  L3-man,  17  Mass.  400,  might  perhaps  be  regarded 
as  an  exception  to  this  remark,  if  a  different  interpretation  had  not 
been  given  to  that  decision  in  the  Supreme  Court  of  the  same  State 
where  it  was  pronounced.  In  the  recent  case  of  Mellen,  Administra- 
trix, v.  Whipple,  1  Gray,  317.  that  decision  is  understood  as  belonging 
to  a  class  where  the  defendant  has  in  his  hands  a  trust  fund,  which  was 
the  foundation  of  the  dut}^  or  promise  on  which  the  suit  is  brought. 

The  cases  in  which  some  trust  was  involved  are  also  frequently  re- 
ferred to  as  authority  for  the  doctrine  now  in  question,  but  the}'  do  not 
sustain  it.  If  A.  delivers  money  or  propert}-  to  B.,  which  the  latter  ac- 
cepts upon  a  trust  for  the  benefit  of  C,  the  latter  can  enforce  the  trust 
by  an  appropriate  action  for  that  purpose  (Berly  v.  Taylor,  5  Hill,  577). 
If  the  trust  be  of  mone}-,  I  think  the  beneficiary  may  assent  to  it  and 
bring  the  action  for  money  had  and  received  to  his  use.  If  it  be  of 
something  else  than  monej',  the  trustee  must  account  for  it  according  to 
the  terms  of  the  trust,  and  upon  principles  of  equity.  There  is  some 
authorit}'  even  for  saying  that  an  express  promise  founded  on  the  pos- 
session of  a  trust  fund  may  be  enforced  by  an  action  at  law  in  the  name 
of  the  beneficiarj',  although  it  was  made  to  the  creator  of  the  trust. 
Thus,  in  Comyn's  Digest  (Action  on  the  case  upon  Assumpsit,  B.  15),  it 
is  laid  down  that  if  a  man  promise  a  pig  of  lead  to  A.,  and  his  executor 
give  lead  to  make  a  pig  to  B.,  who  assumes  to  deliver  it  to  A.,  an  as- 
sumpsit lies  b}'  A.  against  him.  The  case  of  The  Delaware  and  Hudson 
Canal  Company  v.  The  Westchester  County  Bank,  4  Denio,  97,  involved 
a  trust  because  the  defendants  had  received  from  a  third  party  a  bill  of 
exchange  under  an  agreement  that  the}'  would  endeavor  to  collect  it, 
and  would  pay  over  the  proceeds  when  collected  to  the  plaintiffs.  A 
fund  received  under  such  an  agreement  does  not  belong  to  the  person 
■who  receives  it.  He  must  account  for  it  specifically  ;  and  perhaps  there 
is  no  gross  violation  of  principle  in  permitting  the  equitable  owner  of  it 
to  sue  upon  an  express  promise  to  pay  it  over.  Having  a  specific  inter- 
est in  the  thing,  the  undertaking  to  account  for  it  ma}'  be  regarded  as 
in  some  sense  made  with  him  through  the  author  of  the  trust.  But  fur- 
ther than  this  we  cannot  go  without  violating  plain  rules  of  law.  In  the 
case  before  us  there  was  nothing  in  the  nature  of  a  trust  or  agency. 
The  defendant  borrowed  the  money  of  Holly  and  received  it  as  his  own. 
The  plaintiff  had  no  right  in  the  fund,  legal  or  equitable.  The  promise 
to  repay  the  money  created  an  obligation  in  favor  of  the  lender  to  whom 
it  was  made,  and  not  in  favor  of  any  one  else. 

I  have  referred  to  the  dictum  in  Schermerhorn  v.  Vanderheyden,  1 
Johns.  140,  as  favoring  the  doctrine  contended  for.     It  was  the  earliest 


400  LAWRENCE   V.   FOX.  [CHAP.   III. 

ill  this  State,  and  was  founded,  as  already  observed,  on  the  old  English 
ease  of  Dutton  v.  Poole,  in  Ventris.  That  case  has  always  been  referred 
to  as  the  ultimate  authority  whenever  the  rule  in  question  has  been 
mentioned,  and  it  deserves,  therefore,  some  further  notice.  The  father 
of  the  plaintiffs  wife  being  seized  of  certain  lands,  which  afterwards  on 
his  death  descended  to  the  defendant,  and  being  about  to  cut  £1,000 
worth  of  timber  to  raise  a  portion  for  his  daughter,  the  defendant  prom- 
ised the  father,  in  consideration  of  his  forbearing  to  cut  the  timber,  that 
he  would  pay  the  said  daughter  the  £1,000.  After  verdict  for  the  plain- 
tiff, upon  the  issue  of  non-assumpsit,  it  was  urged  in  arrest  of  judgment 
that  the  father  ought  to  have  brought  the  action,  and  not  the  husband 
and  wife.  It  was  held,  after  much  discussion,  that  the  action  would 
lie.  The  court  said,  "  It  might  be  another  case  if  the  monej'  had  been 
to  have  been  paid  to  a  stranger ;  but  there  is  such  a  manner  of  rela- 
tion between  the  father  and  the  child,  and  it  is  a  kind  of  debt  to  the 
child  to  be  provided  for,  that  the  plaintiff  is  plainly'  concerned."  We 
need  not  criticise  the  reason  given  for  this  decision.  It  is  enough  for 
the  present  purpose  that  the  case  is  no  authority  for  the  general  doc- 
trine to  sustain  which  it  has  been  so  frequently  cited.  It  belongs  to  a 
class  of  cases  somewhat  peculiar  and  anomalous,  in  which  promises 
have  been  made  to  a  parent  or  person  standing  in  a  near  relationship  to 
the  person  for  whose  benefit  it  was  made,  and  in  which,  on  account  of 
that  relationship,  the  beneficiary^  has  been  allowed  to  maintain  the  ac- 
tion. Regarded  as  standing  on  an}'  other  ground,  they  have  long  since 
ceased  to  be  the  law  in  England.  Thus,  in  Crow  v.  Rogers,  1  Strange, 
592,  one  Hardy  was  indebted  to  the  plaintiff  in  the  sum  of  £70,  and 
upon  a  discourse  between  Hard}'  and  the  defendant,  it  was  agreed  that 
the  defendant  should  pa}'  that  debt  in  consideration  of  a  house,  to  be 
conveyed  by  Hardy  to  him.  The  plaintiff  brought  the  action  on  that 
promise,  and  Dutton  v.  Poole  was  cited  in  support  of  it.  But  it  was 
held  that  tlie  action  would  not  lie,  because  the  plaintiff  was  a  stranger 
^o  the  transaction.  Again,  in  Price  v.  Easton,  4  Barn.  &  Adolph.  433, 
Due  William  Price  was  indebted  to  the  plaintiff  in  £13.  The  declara- 
tion averred  a  promise  of  the  defendant  to  pay  the  debt,  in  considera- 
tion that  William  Price  should  work  for  him,  and  leave  the  wages  in  his 
hands  ;  and  that  Price  did  work  accordingly,  and  earned  a  large  sum 
of  money,  which  he  left  in  the  defendant's  hands.  After  verdict  for 
the  plaintiff,  a  motion  was  made  in  arrest  of  judgment,  on  the  ground 
that  the  plaintiff  was  a  stranger  to  the  consideration.  Dutton  v.  Poole, 
and  other  cases  of  that  class  were  cited  in  opposition  to  the  motion, 
but  the  judgment  was  arrested.  Lord  Denman  said,  "  I  think  the  dec- 
laration cannot  be  supported,  as  it  does  not  show  any  consideration  for 
the  promise  moving  from  the  plaintiff  to  the  defendant."  Littledale,  J., 
said,  "■  No  privity  is  shown  between  the  plaintiff  and  the  defendant. 
The  case  is  precisely  like  Crow  v.  Rogers,  and  must  be  governed  by 
it."  Taunton,  J.,  said,  "  It  is  consistent  with  all  the  matter  alleged  in 
the  declaration  that  the  plaintiff  may  have  been  entirely  ignorant  of  the 


SECT.   I.]  GtFFOKD   V.   CORillGAN.  401 

arrangement  between  "William  Price  and  the  defendant."  Patterson,  J., 
observed,  "•  It  is  clear  that  the  allegations  do  not  show  a  right  of  actioa 
in  the  plaintiff.  There  is  no  promise  to  the  plaintiff  alleged."  The 
same  doctrine  is  recognized  in  Lilly  v.  Hays,  5  Ad.  &  Ellis,  548,  and 
such  is  now  the  settled  rule  in  England,  although  at  an  early  day  there 
was  some  obscurit}'  arising  out  of  the  case  of  Button  v.  Poole,  and 
others  of  that  peculiar  class. 

The  question  was  also  involved  in  some  confusion  b}'  the  earlier  cases 
in  Massachusetts.  Indeed,  the  Supreme  Court  of  that  State  seem  at 
one  time  to  have  made  a  nearer  approach  to  the  doctrine  on  which  this 
action  must  rest  than  the  courts  of  this  State  have  ever  done  (10  Mass. 
287  ;  17  id.  400).  But  in  the  recent  case  of  Mellen,  Administratrix,  v. 
Whipple,  1  Gra}-,  317,  the  subject  was  carefully  reviewed,  and  the  doc- 
trine utterly'  overthrown.  One  Rollin  was  indebted  to  the  plaintiff's 
testator,  and  had  secured  the  debt  by  a  mortgage  on  his  land.  He 
then  conveyed  the  equity  of  redemption  to  the  defendant,  by  a  deed 
which  contained  a  clause  declaring  that  the  defendant  was  to  assume 
and  pa}'  the  mortgage.  It  was  conceded  that  the  acceptance  of  the 
deed  with  such  a  clause  in  it  was  equivalent  to  an  express  promise  to 
pay  the  mortgage  debt ;  and  the  question  was  whether  the  mortgagee 
or  his  representative  could  sue  on  that  undertaking.  It  was  held  that 
the  suit  could  not  be  maintained ;  and  in  the  course  of  a  very  careful 
and  discriminating  opinion  bj'  Judge  Metcalf,  it  was  shown  that  the 
cases  which  had  been  supposed  to  favor  uhe  action  belonged  to  excep- 
tional classes,  none  of  which  embraced  the  pare  and  simple  case  of  an 
attempt  by  one  person  to  enforce  a  promise  made  to  another,  from 
whom  the  consideration  wholly  proceeded.     I  am  of  that  opinion. 

The  judgment  of  the  court  below  should  therefore  be  reversed,  and  a 
new  trial  granted. 

Grover,  J.,  also  dissented. 

Judgment  affirmed. 


SILAS  D.  GIFFORD,  as  Receiver,  etc.,  Respondent,  v.  MICHAEL 
AUGUSTINE  CORRIGAN,  etc..  Appellant. 

New  York  Court  of  Appeals,  October  16 — November  26,  1889. 

[Reported  in  117  New  York,  257.] 

Appeal  b^-  defendant  Corrigan,  as  executor  of  Cardinal  John 
McCloskey,  deceased,  from  a  judgment  of  the  General  Term  of  the 
Supreme  Court  in  the  second  judicial  department,  entered  upon  an 
order  made  February  11,  1889,  which  affirmed  a  judgment  in  favor  of 
plaintiff,  entered  upon  a  decision  of  the  court  on  trial  at  Special  Term. 

This  action  was  brought  to  foreclose  a  mortgage  executed  by  defend- 

aat,  The  Father  Matthew  Temperauee  Society. Defendant  Corrigan, 

VOL.  I.  —  26 


402  GIFFORD   V.    CORRIGAN.  [CHAF.    III. 

as  executor-  was  sniiffhl:   to  he  chnrp-ofl    fnr  nnv  dpfir>ipnt>v  on  sale  npnn 
a  covenant  in  a  deed  of  the  mortgaged  ureinises  executed  to  liis  tes-  _ 
tfltor  hv  John  Mr-Kvov.  hv  the  terms  of  which  tlie  grantee  assuuiccLami 
agreed  to  pav  the  mortgage. 

The  facts,  so  far  as  material  to  the  questions  discussed,  are  stated  in 
the  opinion. 

Edward  C.  Boardman,  for  appellant. 
Ralph.  E.  Prime^  for  respondents. 

Finch.  J.  On  a  previous  appeal  we  determined  in  this  case  that  the 
record  of  the  deed  to  the  defendant's  testator,  McCIoskey,  by  which  the 
grantee  assumed  the  payment  of  plaiulitfs  mortgage,  was  not,  under 
the  circunistanc'os.  sufficient  proof  of  the  dclivorv  and  acceptance  of  the 
deed.  As  the  case  now  stands  the  effect  of  that  record  is  fortified  by 
direct  proof  of  the  delivery  and  strong  circumstantial  evidence  of  the 
acceptance.  ,  Both  facts  are  now  explicitly  found  bj-  the  trial  court,  but 
the  n[»[)('lhuit  again  denies  the  sufficiency  of  the  proof. 

The,  mortgage  was  executed  in  18G9.  The  land  which  it  covered  was 
sold  and  conveyed  to  IMcEvoy  in  1S70.  McEvoy  was  a  parish  priest, 
and  held  the  title  until  1878,  when  he  conveyed  to  McCloskoy,  the  de- 
fendant's  testator,  who  in  and  by  the  deed  assumed  the  payment  of  the 
ontstandin*-'  mortgage.  Two  things  occurred  the  next  year:  McCioskey 
was  informed  by  letter  that  upon  the  premises  owned  by  him,  describ- 
ing those  conveyed  by  McEvoy,  there  was  a  mortgage  to  Masterton, 
payment  of  which  was  requested,  and  a  few  days  after,  in  a  personal 
interview  with  the  attorney  acting  for  the  mortgagee,  was  told  of  the 
deed  and  its  record,  and  the  assumption  clause  was  read  to  him  and  hi6 
liability  under  it  asserted.  McCioskey  answered  that  he  would  com- 
municate with  Father  Keogh  ;  that  he  had  referred  the  matter  to  him, 
and  that  the  witness  would  hear  from  Keogh.  The  latter  was  the  suc- 
cessor of  McEvo}'  as  parish  priest,  and  owed  his  appointment  to  the 
cardinal.  The  second  thing  was  that  the  account  for  the  rents  of  the 
property  collected  by  Keogh  were  by  him  returned  once  a  year  to 
the  chancery  office  which  managed  the  cardinal's  business  affairs  relat- 
ing to  the  church.  Within  one  ,year.^  therefore,  after  the  record  of  the 
deed  McCioskey  knew  all  about  it,  and  instead  of  repudiating  it  anol_ 
refusing  a('ce[)tance,  simply  referred  the  creditor  to  the  parish  priest 
who  l)egan  a  uniform  system  of  collecting  the  rents  of  the  property  and 
returning  the  facts  to  the  cardiual's  business  otfice,  which  was  their 
proper  repository;,  Keogh  not  only  remained  in  possession  under 
McCioskey,  but  insured  the  pi'emises  in  the  name  of  the  cardinal.  For 
some  time  after  its  record  the  deed  remained  in  the  custody  of  McEvoj', 
but  as  earl}'  as  1882  he  delivered  it  to  O'Connor,  who  was  a  clerk  in 
the  chancery  office.  The  superintendent  of  that  office  was  Preston. 
He  is  called  in  the  record  vicar-general  and  chancellor  and  monseigneur. 
Whatever  his  ecclesiastical  title,  his  own  evidence  shows  that  he  was 
merely  a  subordinate  or  secretary  of  the  cardinal,  with  no  authority  of  his 
own,  and  depended  wholly  upon  the  directions  of  his  superior,  either  gen- 


SECT.   I.]  GIFFORD   V.  COPwRIGAN.  403 

eral  or  specific.  His  attention  was  called  to  the  deed  after  its  delivery 
at  the  chancery  office  by  O'Connor,  who  delivered  it.  Preston  says  that 
the  next  time  he  saw  Keogh  he  "  positively  forbade  him  to  have  any- 
thing to  do  with  that  hall  or  to  accept  any  rent  for  it."  This  is  said  to 
have  occurred  in  1882.  It  does  not  appear  that  Preston  had  any  author- 
ity from  the  cardinal  to  issue  this  order  to  Keogh,  or  any  general 
direction  which  covered  it.  It  is  certain  that  Keogh  did  not  obey  it, 
for  he  pgnlinued-ta-CQllpct  the  rftnts  and  report  them  as  part  of  hi.s  parish 
accounts  to  the  chancer3'  office.  Preston  was  either  ignorant  of  the 
current  transactions  which  it  was  his  duty  to  supervise,  or  he  had  with- 
drawn his  command,  or  the  parish  priest  was  deliberately  defying  his 
superiors  and  the}'  were  patiently  submitting  to  it.  At  all  events,  the 
deed  rested  in  the  chancer}*  office,  the  priest  kept  possession  of  the  prop- 
erty, and  accounted  for  its  rents  to  McCloskey  ;  no  offer  of  a  reconvey- 
ance has  been  made,  and  thej^cordgs^searchedjrijvain^ for  any  word  or 
act  of  refusal  or  repudiation  by  McCloskey.  On  such  a  state  of  facts 
the  finding  of  the  Special  Term  that  there  was  a  delivery  and  acceptance 
may  easil}'  stand,  and  must  conclude  us  on  this  appeal. 

But  another  circumstance  introduces  an  additional  defence  and  raises 
a  further  question.  Just  after  the  issue  of  a  summons  in  this  action  and 
the  filing  of  a  lis  pendens,  t he,-C Xjeciitor, .oOIcE voy  ibr nially  releaggji 
MgCloskey  from  his  covenant^  and  the  latt^^.plaads  that  release.  It 
asserts  that  the  deed  was  never  delivered,  which  is  found  to  be  an 
untruth ;  that-the  assumption  clause  was  inserted  by  mistake  and  inad- 
vertence, of  which  there  is  not  a  particle  of  proof;  andllien  in  further 
jconsideration  of  $1  formally  releases  the  cardinal  from  his  covenant. 
This  release  was  executed  after  the  knowledge  of  the  deed  of  McCloskey 
and  the  covenant  contained  in  it  had  reached  the  mortgagee ;  after  the 
latter  had  accepted  and  adopted  it  as  made  for  his  benefit  and  com- 
municated that  fact  to  the  debtor  by  a  formal  demand  of  payment; 
after  the  mortgagee  had,  for  three  years,  permitted  the  grantee  to  absorb 
and  appropriate  the  rents  and  profits  in  reliance  upon  the  covenant ; 
and  after  he  had  commenced  an  action  for  foreclosure  by  the  issue  of 
a  summons  and  filing  of  a  lis  "pendens^  at  a  moment  when  the  execu- 
tor who  released  was  aware  that  trouble  was  approaching,  but  before 
McCloskey  was  actuall}-  served  or  had  appeared  in  the  action. 

Xa.this.  release. thus  ex&puted^-defence  .tO-, this . actioni.  I  shall  not 
undertake  to  decide,  if,  indeed,  the  question  is  open  (Knickerbocker 
Life  Ins.  Co.  v.  Nelson,  78  N.  Y.  137  ;  Coraley  v.  Dazian,  114  id.  161, 
167),  whether  in  the  interval  between  the  making  of  the' contract  and 
the  acceptance  and  adoption  of  it  b}'  the  mortgagee  it  was  or  was  not 
revocable  without  his  assent.  However  that  ma}*  be,  the  only  inquiry 
now  presented  is,  whether  it  is  so  Revocable  ^ft^r  it  has  come  to  the 
knowledge  of  tlie  creditor,  and  he  t^qc  nacf^nfcrl  \n.  ft.  anrl  gr»r>p^,prl  it  as  a 
gLecurity_  for  liis  own  lionefit.  My  judgment  leads  me  to  answer  that 
question  in  the  negative. 

Of  course  it  is  difficult,  if  not  impossible,  to  reason  about  it  without 


404  GIFFOKD   V.   COREIGAN.  [CHAP.   ITI. 

recurring  to  Lawrence  v.  Fox  (20  N.  Y.  268),  and  ascertniniiig-  the 
principle  upon  which  its  doctrine  is  founded.  That  is  a  difficult  task, 
especialh'  for  one  whose  doubts  are  only  dissipated  by  its  authority, 
and  becomes  more  difficult  when  the  number  and  variety  of  its  alleged 
foundations  are  considered.  But  whichever  of  them  may  ultimately 
prevail,  I  am  convinced  that  tjiev  all  involve^  as  a  logical  consequence, 
the  irrevocable  character  of  the  contract  after  the  creditor  has  accepted 
^nd  ado]>ted  it,  and  in,  some  manner  acted  upon  it.  The  prevailing 
Oljinion  ill  thaljcase  re^^^^l  the  c^-editor's  right  upon  the  liroad  propo- 
sition  tliat  the  promise  was  made  for  his  beuelit,  and,  therefore,  he 
might  sue  upon  it,  altlKjugh  privy  neitlu'r  to  the  contract  nor  its^consider<: 
. ation ■,  That  view  of  it  necessarily  involves  an  acquisition  at  some 
moment  of  time  of  the  right  of  action  which  he  is  permitted  to  enforce. 
If  it  be  possible  to  say  that  he  does  not  acquire  it  at  the  moment  when 
tlie  promise  for  his  benefit  is  made,  it  must  be  that  he  obtains  it  when  it 
has  come  to  his  knowledge  and  he  has  assented  to  and  acted  upon  it. 
For  he  man  sue  :  that  is  decided  and  conceded.  If  he  may  sue,  he 
must,  at  that  moment,  have  a  vested  right  of  action.  If  it  was  not 
obtained  earlier  it  must  have  vested  in  him  at  the  moment  when  his 
action  was  commenced,  so  that  the  right  and  the  remedy  were  born  at 
the  same  instant.  But  there  is  no  especial  magic  in  a  lawsuit.  If  it 
serves  for  the  first  time  to  originate  the  right  which  it  seeks  to  enforce, 
it  can  onl}'  be  because  the  act  of  bringing  it  shows  unequivocally  that 
the  promise  of  the  grantee  has  come  to  the  knowledge  of  the  plaintiff, 
that  the  latter  has  accepted  and  adopted  it,  that  he  intends  to  enforce  it 
for  his  own  benefit,  and  gives  notice  of  that  intention  to  the  adversary. 
From  that  moment  he  must  be  assumed  to  act  or  omit  to  act  in  reliance 
upon  it.  But  if  all  these  things  occur  before  a  suit  (commenced,  why  do 
they  not  equally  vest  the  right  of  action  in  the  assignee?  What  more 
does  the  mere  lawsuit  accomplish?  And  so  the  contract  lietween 
grantor  and  grantee,  if  revocaljle  earlier,  ceases  to  be  so  when  by  his 
assent  to  it  and  adoption  of  it  the  creditor  brings^Jiimself  into  priyit}' 
jvith  it  and  elects  to  avail  himself  of  it,  and  must  be  assumed  to  liave 
governed  his  conduct  accordingly.    I  see  no  escape  from  tluit  conclusion. 

But  two  of  the  judges  who  concurred  in  the  decision  of  Lawrence  v. 
Fox  stood  upon  a  different  proposition.  The}'  held  that  the  mortgagor 
granting  the  land  accepted  the  grantee's~~coveniant  aT  agent  of  the 
mortgagee,  who  might  ratify  the  act  with  the  same  effect  as  if  he  had 
originally  authorized  it.  While  I  think  the  idea  of  such  an  agency  is  a 
legal  fiction,  having  no  warrant  in  the  facts,  3'et  the  same  result  as  to 
the  power  of  revocation  follows.  While  the  agenc}'  remained  unautho- 
rized it  might  be  possible  to  change  the  transaction,  but  after  the  ratifi- 
cation the  promise  necessarily  becomes  one  made  to  the  mortgagee, 
through  his  agent,  the  mortgagor,  acting  lawfull}'  in  his  behalf,  and 
from  that  moment  cannot  be  altered  or  released  without  his  sanction 
and  consent. 

But  another  basis  for  the  action  has  been  asserted,  applicable,  how- 


SECT.   I.]  GIFFORD   V.   CORRIGAN.  405 

ever,  onh-  to  cases  like  the  present,  where,  on  foreclosure  of  the  mort- 
gage, its  owner  seeks  a  judgment  for  a  deficiency'  against  the  new 
covenantor.  In  Burr  v.  Beers,  24  N.  Y.  179,  and  again  in  Garnsey  v. 
Rogers,  47  N.  Y.  242,  it  was  pointed  out  that  thp  linhilitv  of  thft 
grantee  to  the  mortp^ao:ee  rested  upon  thp  pnnitnblp  riorht.  nf  gnhrncrq. 
tiou,  and  had  been  recognized  aiiH^enforced  long  before  Lawrence  v. 
Fox  made  its  ai»[)eaiance.  It  was  held  that  where  the  mortgagor  ac- 
quired a  new  security  for  his  indemnity  against  the  debt  which  he  owed 
to  the  mortgagee,  the  latter  might,  in  equity,  be  subrogated  to  the  right 
of  his  debtor,  and,  under  the  statute  permitting  an^'  person  liable  for 
the  mortgage  debt  to  be  made  defendant  and  charged  with  a  deficiency 
in  the  foreclosure,  the  new  covenant  became  available  to  the  mortgagee. 
It  was  so  held  in  Halsey  v.  Reed,  9  Paige,  446,  and  the  right  of  the 
mortgagee  was  put  upon  the  equity  of  the  statute.  That,  if  a  sound 
proposition,  was  all  verj'  well  so  long  as  there  was  supposed  to  be  no 
equivalent  remedy  at  law,  but  after  the  decision  of  Lawrence  v.  Fox 
that  remedy  existed.  And  so  in  Thorp  v.  Keokuk  Coal  Companj-,  48 
N.  Y.  258,  the  court  said  that  it  saw  no  reason  for  invoking  the  doc- 
trine of  equitable  subrogation,  or  resting  upon  it  in  such  a  case.  When 
the  law  has  absorbed,  in  a  broader  equity,  the  narrow  one  enforced  in 
chancer}',  the  form  and  measure  of  the  latter  ceases  to  be  of  conse- 
quence. One  does  not  seek  to  trace  the  river  after  it  has  lost  itself  in 
the  lake.  And  so  I  think  the  suggestion  is  well  founded.  But  if  I  am 
wrong  about  that,  as,  perhaps,  I  ma}'  prove  to  be,  and  the  right  of  the 
present  plaintiff  against  the  cardinal's  estate  does  stand  upon  the 
doctrine  of  equitable  subrogation,  still  I  think  the  same  result  follows. 
When  does  that  equitable  right  arise  and  become  vested  in  the  creditor? 
It  would  seem  that  it  must  be  when  the  situation  is  created  out  of 
which  the  equity  is  born.  If  it  be  possible  to  adjourn  it  to  a  later 
period,  it  must  certainly  attach  when  the  creditor  asserts  his  right  to  it 
and  notifies  the  other  part}'  of  his  intention  to  rely  upon  it.  As  a  right, 
founded  upon  the  equity  of  the  statute,  it  must  have  come  into  being 
before  the  foreclosure  suit  was  commenced ;  for  the  permission  reads, 
"  any  person  who  is  liable  to  the  plaintiff  for  the  payment  of  the  debt 
secured  by  the  mortgage  may  be  made  a  defendant  in  the  action."  His 
liability  must  precede  the  commencement  of  the  action.  It  must  exist 
as  a  condition  of  his  being  sued  at  all ;  and  so,  assuming  that  this  action 
can  be  maintained  against  him  upon  his  promise,  the  right  of  action 
must  have  arisen  at  once  upon  the  delivery  of  the  deed,  or,  at  the  latest, 
when  the  promise  came  to  the  knowledge  of  the  creditor,  and  he  assented 
to  and  adopted  it. 

I  have  been  quite  favorably  impressed  with  a  fourth  suggestion  re- 
specting the  basis  of  these  rights  of  action  which  appears  in  the  opinion 
of  Andrews,  J.,  rendered  when  this  case  was  before  us  on  a  previous 
appeal.  "After  all,"  he  says,  "does  not  the  direct  right  of  action  rest 
upon  the  equity  of  the  transaction  ?  "    If  we  discard  the  fictitious  theory 


406  DUENHERK    V.    RAU.  [CHAP.   III. 

of  an  agenc}^  what  remains  is  the  equitable  right  of  subrogation  swal- 
lowed up  in  the  greater  equity  of  the  legal  right  founded  on  the  theory 
of  a  promise  made  for  the  benefit  of  the  creditoi*.  It  is  no  new  thing 
for  the  law  to  borrow  weapons  from  the  arsenal  of  equitj-.  The  action 
for  money  had  and  received  is  a  familiar  illustration.  May  we  not 
deem  this  another  ?  If  we  do,  and  the  door  is  thus  opened  wide  to 
equitable  considerations,  I  am  quite  sure  it  will  follow  that  while  no 
right  of  the  mortgagee  is  invaded  b}-  a  change  of  the  contract  before  it  is 
brought  to  his  knowledge,  and  he  has  assented  .to  it  and  acted  upon  it, 
yet  to  permit  a  change  thereafter,  while  the  creditor  is  relying  upon  it, 
would  be  grossly  inequitable  and  pi-acticall3'  destroy  the  right  which  has 
maintained  itself  after  so  long  a  struggle. 

It  seems  to  me,  therefore,  that  however  we  may  reasonabl}'  differ  as 
to  the  doctrine  underlying  the  plaintiff's  right  of  action,  j-et  all  the  roads 
lead  to  the  one  result  that  upon  the  facts  of  this  case  the  release  to 
McCloskey  was  wholly  ineffectual. 

The  judgment  should  be  affirmed,  with  costs. 

All  concur  except  Danforth  and  Peckham,  JJ.,  dissenting. 

Judgment  affirmed. 


BENEDICTA  DURNHERR,  Appellant,   v.  JOSEPH  RAU, 
Respondent. 

New  York  Court  of  Appeals,  June  3  —  October  4,  1892. 

[Reported  in  135  New  York,  219.] 

Appeal  from  order  of  the  General  Term  of  the  Supreme  Court  in  the 
fifth  judicial  department,  made  June  2,  1891,  which  affirmed  an  order 
entered  upon  the  minutes,  setting  aside  a  verdict  in  favor  of  plaintiff 
and  granting  a  new  trial. 

This  was  an  action  to  recover  damages  for  an  alleged  breach  of 
covenant  in  a  deed  from  Emanuel  Durnherr,  plaintiff's  husband,  to 
defendant. 

The  facts,  so  far  as  material,  are  stated  in  the  opinion. 

Theodore  Bacon,  for  appellant. 

William  E.  Edmonds,  for  respondent. 

Andrews,  J.  The  deed  from  Emanuel  Durnherr  to  the  defendant 
recited  that  it  was  given  in  payment  of  a  debt  owing  by  the  grantor 
to  the  grantee  of  $660,  "  and  the  further  considerations  expressed 
herein."  The  grantee  covenanted  in  the  deed  to  pay  all  incumbrances 
on  the  premises  "  by  mortgage  or  otherwise."  This  constitutes  the 
only  "  further  consideration  "  on  his  part  expressed  therein.  The  deed 
also  declared  that  the  wife  of  the  grantor  (the  plaintiff)  reserved  her 
right  of  dower  in  the  premises.     The  conveyance  contained  a  covenant 


SECT.   I.]  DURNHEKR   V.   RAU.  407 

of  general  warrant}'  b}-  the  grantor,  and  the  only  legal  operation  of  the 
clause  respecting  the  dower  of  the  wife  was  to  limit  the  scope  of  the 
warranty  b\'  exehiding  therefrom  her  dower  right.  By  the  foreclosure 
of  the  mortgages  on  the  premises  existing  at  the  time  of  the  convej'ance, 
in  which  (as  is  assumed)  the  wife  joined,  the  title  has  passed  to  pur- 
chasers on  the  foreclosure,  and  the  inchoate  right  of  dower  in  the  wife 
has  been  extinguished.  This  action  is  brought  by  the  wife  on  the  de- 
fendant's covenant  in  the  deed,  and  she  seeks  to  recover  as  damages 
the  value  of  her  inchoate  right  of  dower,  which  was  cut  off  b}'  the 
foreclosure. 

The  courts  below  denied  relief,  and  we  concur  in  their  conclusion. 
The  covenant  was  witli  the  husband  alone.  He  had  an  interest  in 
obtaining  indemnity  against  his  personal  liability  for  the  mortgage 
debts,  and  this,  presumably,  was  his  primar}'  purpose  in  exacting 
from  the  grantee  a  covenant  to  pa}^  the  mortgages.  The  cases  also 
attribute  to  the  parties  to  such  a  covenant  the  further  purpose  of  benefit- 
ing the  holder  of  the  securities,  and  the  natural  scope  of  the  covenant 
is  extended  so  as  to  give  them  a  right  of  action  at  law  on  the  covenant, 
in  case  of  breach,  as  though  expressl}'  named  as  covenantees.  Burr  v. 
Beers,  24  N.  Y.  178.  But  the  wife  was  not  a  party  to  the  mortgages, 
and  in  no  way  bound  to  pay  them.  She  had  an  interest  that  they  should 
be  paid  without  resort  to  the  land,  so  that  her  inchoate  right  of  dower 
might  be  freed  therefrom.  The  husband,  however,  owed  her  no  duty 
enforceable  in  law  or  equity  to  pay  the  mortgages  to  relieve  her  dower. 
The  most  that  can  be  claimed  is  that  the  mortgages  having  (as  is  as- 
sumed) been  executed  to  secure  his  debts,  and  he  having  procured  the 
wife  to  join  in  them  and  pledge  her  right  for  their  payment,  he  owed 
her  a  moral  dut}'  to  pa}'  the  mortgages,  and  thereb}'  restore  her  to  her 
original  situation.  But  according  to  our  decisions  no  legal  or  equitable 
obligation,  of  which  the  law  can  take  cognizance,  was  created  in  favor 
of  the  wife  against  the  husband  or  his  property  by  these  circumstances. 
She  was  not  in  the  position  of  a  surety  for  her  husband.  Her  joinder 
in  the  mortgages  was  a  voluntary  surrender  of  her  right  for  the  benefit 
of  the  husband,  and  bound  her  interest  to  the  extent  necessary  to  pro- 
tect the  securities.  Manhattan  Co.  v.  Everston,  6  Pai.  467  ;  Hawle}'  v. 
Bradford,  9  id.  200.  There  is  lacking  in  this  case  the  essential  relation 
of  debtor  and  creditor  between  the  grantor  and  a  third  person  seeking 
to  enforce  such  a  covenant,  or  such  a  relation  as  makes  the  performance 
of  the  covenant  at  the  instance  of  such  third  person  a  satisfaction  of 
some  legal  or  equitable  duty  owing  by  the  grantor  to  such  person 
which  must  exist  according  to  the  cases  in  order  to  entitle  a  stranger 
to  the  covenant  to  enforce  it.  It  is  not  sufficient  that  the  performance  of 
the  covenant  may  benefit  a  third  person.  It  must  have  been  entered 
into  for  his  benefit,  or  at  least  such  benefit  must  be  the  direct  result  of 
I)erformance  and  so  within  the  contemplation  of  the  parties,  and  in 
addition  the  grantor  must  have  a  legal  interest  that  the  covenant  be 
performed  in  favor  of  the  part}'  claiming  performance.  Garnsey  v. 
Rogers,  47  N.  Y.  233  ;  Vrooman  v.  Turner,  69  id.  280  ;  Lorillard  v. 


408  BASSET   V.   HUGHES.  [CHAP.   HI. 

Clyde,  122  id.  498.  The  application  of  the  doctrine  of  Lawrence  v. 
Fox  (20  N.  Y.  268),  to  this  case  would  extend  it  much  further  than 
hitherto,  and  this  cannot  be  permitted  in  view  of  the  repeated  declara- 
tions of  the  court  that  it  should  be  confined  to  its  original  limits. 

The  order  should  be  affirmed,  and  judgment  absolute  ordered  for  the 
defendant  with  costs. 

All  concur.  Order  affirmed  and  judgment  accordingly. 


BASSET  AND  ANOTHER  V.   HUGHES. 

Wisconsin  Supreme  Court,  August  Term,  1877. 

[Reported  in  43  Wisconsin,  319.] 

Appeal  from  the  Circuit  Court  for  Dodge  Count}'. 

Action  for  the  balance  of  an  indebtedness  due  originall}'  from  Hugh 
W.  Hughes  (defendant's  father)  to  the  plaintiffs. 

In  April,  1870,  Hugh  W.  Hughes  conveyed  to  the  defendant  certain 
real  estate  and  all  of  his  personal  propert}',  in  consideration  whereof 
defendant  covenanted,  among  other  things,  to  pa}'  all  debts  of  the 
former.  This  covenant  is  contained  in  a  bond  executed  b}'  defendant 
to  said  Hugh  W.  Hughes.  When  the  bond  was  executed  the  cove- 
nantee owed  plaintiffs  the  demand  in  suit,  for  which  the}-  held  this  note. 
The  defendant  knew  of  the  existence  of  this  note  when  he  covenanted 
to  pay  his  father's  debts,  and  afterwards  made  a  payment  of  $300  upon 
it,  leaving  unpaid  the  balance  claimed  in  this  action.  These  facts 
appear  from  the  pleadings  and  proofs,  and  the  findings  of  fact  by  the 
court. 

On  the  trial  defendant  offered  testimon}'  In  various  forms  for  the 
purpose  of  showing  that  his  covenant  to  pa}'  his  father's  debts  was 
rescinded  in  1873,  by  an  agreement  to  that  effect  between  him  and  his 
father ;  but  the  court  refused  to  admit  the  testimony. 

The  cause  was  tried  by  the  court  without  a  jury,  and  resulted  in  a 
judgment  for  the  plaintiffs  for  the  unpaid  balance  due  them  on  the  note 
of  Hugh  W.  Hughes.     Defendant  appealed  from  the  judgment. 

The  cause  was  submitted  on  the  brief  of  James  J.  Dick  for  the  appel- 
lant, and  that  of  Hazelton  &  Dering   for  the  respondents. 

Lton,  J.  1.  It  is  settled  in  this  State  that  when  one  person,  for  a 
valuable  consideration,  engages  with  another  to  do  some  act  for  tlie 
benefit  of  a  third  person,  the  latter  .may  maintain  an  action  against  the 
former  for  a  breach  of  such  engagement.  This  rule  applies  as  well  to 
covenants  umliu-  seal  as  to  simple  contracts.  McDowell  v.  Laev, 
35  Wis.,  181,  and  cases  cited.  In  the  present  case  the  defendant,  for 
a  valuable  consideration,  engaged  with  his  father  to  pay  the  debt  which 


SECT.   I.]  BASSET   V.   HUGHES.  409 

the  latter  owed  the  plaintiffs,  and,  within  the  above  rule,  the  plaintiffs 
may  maintain  this  action  to  recover  the  unpaid  balance  of  such  debt.^ 

2.  It  is  quite  immaterial  if  the  defendant's  covenant  to  pay  his 
father's  debts  was  afterwards  rescinded  by  mutual  agreement  between 
the  parties  to  it.  Before  that  was  done  the  plaintiffs  had  been  informed 
of  the  covenant,  and  made  no  objection  thereto;  indeed,  the  fair  infer- 
ence from  the  testimony  is  that  the  plaintiffs  full}'  assented  thereto. 
Whether  it  was  or  was  not  competent  for  the  parties  to  the  covenant  to 
rescind  it  before  such  notice  to  and  assent  by  the  plaintiffs,  we  need  not 
here  determine.  Certainl}-,  after  such  notice  and  assent,  the  covenant 
could  not  be  rescinded  to  the  prejudice  of  the  plaintiffs,  without  their 
consent. 

To  support  the  position  that  it  was  competent  for  the  defendant  and 
his  father  to  rescind  the  contract,  and  thus  defeat  the  plaintiffs'  right 
of  action  against  the  defendant,  the  learned  counsel  for  the  defendant 
cites  two  Xew  York  cases:  Kelly  v.  Roberts,  40  N.  Y.,  432,  and 
Kelly  V.  Babcock,  49  id.,  318.  These  cases  do  not  sustain  the  posi- 
tion. In  the  first,  it  was  held  that  an  agreement,  tipon  no  new  con- 
sideration, between  debtor  and  creditor,  that  the  debtor  shall  pay  the 
amount  of  his  debt  to  a  third  person,  to  whom  the  creditor  is  indebted, 
is  not,  in  the  absence  of  any  notice  or  acceptance  of  or  assent  to  the 
arrangement  by  such  third  person,  irrevocable  by  the  creditor.  In  the 
latter  case  it  was  held  that  "  an  agreement  in  a  bill  of  sale  or  instru- 
ment of  transfer  of  personal  propert}'  that  a  portion  of  the  purchase 
money  of  the  goods  sold  may  be  paid  to  and  among  the  creditors  of  the 

1  Central  Trust  Co.  v.  Berwind-White  Co.,  9.5  Fed,  Kep.  391  ;  Starbird  v.  Cranston, 
24  Col.  20;  Webster  v.  Fleming,  178  111.  140;  Harts  v.  Emery,  184  111.  560;  Robinson 
V.  Holmes,  75  111.  App.  203  ;  Am.  Splauf  Co.  v.  Barber,  91  111.  App.  359  ;  Jefferson  v. 
Asch,  53  Minn.  446  ;  Rogers  v.  Gosnell,  51  Mo.  466,  58  Mo.  589  ;  Van  Schaick  v. 
Railroad,  38  N.  Y.  346  ;  Coster  v.  Albany,  43  N.  Y.  399  ;  Riordan  v.  First  Church, 
26  N.  Y.  Supp.  38 ;  Emmitt  v.  Brophy,  42  Uhio  St.  82  ;  Hughes  v.  Oregon  Co., 
11  Ureg.  437;  McDowell  v.  Laev,  35  Wis.  181  ;  Houghton  v.  Milburn,  54  Wis.  554; 
Stites  V.  Thompson,  98  Wis.  329,  331,  ace.  A  third  person  was  allowed  to  enforce  a 
promise  under  seal  also  in  the  following  cases,  but  the  point  was  not  discussed  :  South 
Side  Assoc,  v.  Cutler  Co.,  64  Ind.  560 ;  Anthony  v.  Herman,  14  Kan.  494  ;  Brenner  v. 
Luth,  28  Kan.  581.  See  also  Va.  Code,  §  2415;  Newberry  Land  Co.  v.  Newberry,  95 
Va.  111. 

Hendricks  v.  Lindsay,  93  U.  S.  143  ;  Willard  v.  Wood,  135  U.  S.  311,  313,  152  U.  S. 
502  ;  Douglass  v.  Branch  Bank,  19  Ala.  659  ;  Hunter  v.  Wilson,  21  Fla.  250,  252  ;  Gun- 
ter  V.  Moouey,  72  Ga.  205  ;  Moore  v.  House,  64  111.  162;  Gautzert  v.  Hoge,  73  111.  30; 
Harms  v.  McCormick,  132  111.  104,  109  (now  changed  by  statute)  ;  Hinkley  v.  Fowler, 
15  Me.  285  ;  Farmington  v.  Hobart,  74  Me.  416  ;  Seigman  v.  Hoffacker,  57  Md.  321  ; 
Montague  v.  Smith,  13  Mass.  396 ;  Millard  v.  Baldwin,  3  Gray,  484  ;  Robb  v.  Mudge, 
14  Gray,  534,  538;  Flynn  v.  North  American  Life  Ins.  Co.,  115  Mass.  449;  Lee  v. 
Newman,  55  Miss.  365,  374  ;  How  v.  How,  1  N.  II.  49  ;  Crowell  v.  Currier,  27  N.  J.  Eq. 
152  ;  Joslin  v.  New  Jersey  Car  Spring  Co.,  36  N.  J.  L.  141,  146  ;  Cocks  v.  Varney,  45 
N.  J.  Eq.  72  ;  Strohecker  v.  Grant,  16  S.  &  R.  237  ;  De  Bollc  v.  Pennsylvania  Ins.  Co., 
4  Whart.  68 ;  Mi.ssissippi  R.  R.  Co.  v.  Southern  A.ssoc.,  8  Phila.  107  ;  McAlister  v. 
Marljerry,  4  Humph.  426;  Fairchild  r.  North  Eastern  Assoc,  51  Vt.  613;  Jones  y. 
Thomas,  21  Gratt.  96,  101  (now  changed  by  statute);  McCarteney  v.  Wyoming  Nat. 
Bank,  1  Wyo.  382,  contra. 


410  BASSET   V.    HUGHES.  [CHAP.   III. 

vendor,  without  a  consent  or  agreement  on  the  part  of  the  vendee  thus 
to  pa}',  creates  no  trust ;  the  balance  unpaid  is  a  debt  due  the  vendor, 
and  can  be  reached  by  and  held  under  an  attachment  against  his 
property-."  In  this  case,  the  defendant  covenanted  to  pay  his  fatlier's 
debts  ;  there  was  a  new  and  valid  consideration  for  such  covenant ; 
and  the  plaintiffs  were  notified  that  it  had  been  made,  and  gave  their 
assent  thereto.  Thus  we  find  here  all  the  conditions  essential  to  the 
plaintiffs'  right  of  action,  which  were  wanting  in  those  cases.  We  con- 
clude that  the  testimony  offered  to  show  a  rescission  of  the  covenant 
was  properly  rejected.^ 

By  the  Court,  Judgment  affirmed? 

^  A  portion  of  the  opinion  is  omitted. 

2  Biddel  v.  Brizzolara,  64  Cal.  "554  ;  Merrick  v.  Giddings,  1  Mackey  (D.  C.),  394; 
Durham  v.  Bischof,  47  Ind.  211  ;  Carnahan  v.  Tousey,  93  Ind.  561  ;  Smith  v.  Flack, 
95  Ind.  116,  120  ;  Gilbert  v.  Sanderson,  56  la.  349;  Cohrt  i\  Kock,  56  la.  658;  beif- 
fert  Lnmber  Co.  v.  Hartwell,  94  la.  576,  582  ;  Dodge's  Adm.  v.  Moss,  82  Ky.  441 ; 
Mitchell  V.  Cooley,  5  Rob.  243  ;  Cucullu  v.  Walker,  16  La.  Ann.  198;  Garusey  v.  Rog- 
ers, 47  N.  Y.  233,  242 ;  Gifford  v.  Corrigan,  117  N.  Y.  257  ;  Seaman  v.  Hasbrouck,  35 
Barb.  151 ;  Holder  i'.  Nat.  Bank,  9  Hun,  108,  afifd.  73  N.  Y.  599  ;  Wilson  v.  Stilwell,  14 
Ohio  St.  464 ;  Trimble  v.  Strother,  25  Ohio  St.  378 ;  Brewer  v.  Maurer,  38  Ohio  St. 
543;  Emmitt  v.  Brophy,  42  Ohio  St.  82;  McCown  v.  Schrimpf,  21  Tex.  22;  Huffman 
t;.  Western  Mortgage  Co.,  13  Tex.  Civ.  App.  169;  Clark  v.  Fisk,  9  Utah,  94,  ace.  ; 
Stephens  v.  Casbacker,  8  Hun,  116,  contra.  See  also  Hartley  v.  Harrison,  24  N.  Y. 
170. 

What  is  required  in  the  way  of  assent  or  acting  upon  the  promise  is  not  defined. 
Doubtless  in  many  jurisdictions  if  the  third  person  had  knowledge  of  the  promise  and 
made  no  objection  he  would  be  regarded  as  assenting.  But  in  Crowell  v.  Currier,  27 
N.  J.  Eq.  152  (s.  c.  on  appeal  sub.  tiom.  Crowell  v.  Hospital,  27  N.  J.  F.q.  650),  it  was 
held  that  rescission  was  permissible  because  the  third  party  had  not  altered  his  position, 
the  court  apparently  requiring  something  like  an  estoppel  to  prevent  a  rescission ;  and 
in  Wood  V.  Moriarty,  16  R.  I.  201,  a  release  by  the  promisee  was  held  effectual,  though 
the  creditors  had  made  a  demand  upon  the  promisor  for  the  money,  because  the  cred- 
itors "  did  not  do  or  say  anything  inconsistent  with  their  continuing  to  look  to  T  (the 
original  debtor)  for  the  debt." 

In  a  few  cases,  it  has  been  held  that  though  there  has  been  no  expression  of  assent 
by  the  third  person  no  effective  rescission  or  release  can  be  made.  Starbird  v,  Cran- 
ston, 24  Col.  20;  Bay  v.  Williams,  112  111.  91  ;  Cobb  v.  Heron,  78  111.  App.  654, 
180  111.  49  ;  Henderson  v.  McDonald,  84  Ind.  149  ;  Waterman  v.  Morgan,  114  Ind.  237  ; 
Rogers  v.  Gosnell,  58  Mo.  587  ;  Thomp.son  v.  Gordon,  3  Strobh.  196.  See  also  Kuowles 
V.  Erwin.  43  Hnn,  150  aifd.  124  N.  Y.  623. 

The  almost  universal  doctrine  that  the  beneficiary  of  a  life  insurance  policy  acquires 
a  vested  right  of  which  he  cannot  be  deprived  sub.sequeutly  is  in  accord.  The  numer- 
ous cases  are  collected  in  3  Am.  &  lOng.  Encyc.  (2d  ed.),  980. 

In  Trustees  v.  Anderson,  30  N.  J.  Eq.  365,  368,  the  Court  say,  "  That  the  releases 
were  executed  and  delivered  merely  in  view  of  this  suit,  and  for  the  purpose  of  pre- 
venting the  complainants  from  having  recourse  in  equity  to  Youngs,  is  proved,  and, 
indeed,  is  admitted.  That  the  grantor  may,  before  suit  brought  against  his  grantee 
by  the  mortgagee  to  obtain  the  benefit  of  such  a  covenant  of  assumption,  release  or  dis- 
charge it,  and  so  prevent  the  mortgagee  from  obtaining  any  benefit  of  it,  is  established. 
Crowell  V.  Hospital  of  St.  Barnabas,  12  C.  E.  Gr.  650.  But  the  act  of  release  or  dis- 
charge, to  be  effectual,  must  be  done  honnfde,  and  not  merely  for  the  purpose  of  thwart- 
ing the  mortgagee  and  depriving  him  of  an  equity  to  which  he  is  entitled.  Where  a 
person,  in  consideration  of  a  debt  due  from  him,  agrees  with  his  f -editor  that  he  will, 
in  discharge  of  it,  pay  the  amount  to  the  creditor  of  the  latter,  in  discharge  or  on  ac- 


SECT.   I.]  BOH  AN  AN   V.   POPE.  411 


JONES   A.    BOHANAN  v,   S.   W.    POPE,  et  al. 

Supreme  Judicial  Court  op  Maine,   1856. 

[Repo7ted  in  42  Maine,  93.] 

On  facts  agreed  from  Nisi  Prius. 

This  was  an  action  of  assumpsit  brought  upon  a  contract.  The 
general  issue  was  pleaded  and  joined,  with  a  brief  statement,  setting 
forth  that  the  plaintiff  had  been  paid  for  the  labor  named  in  his  writ 
by  one  Henry  P.  Whitney,  or  by  reason  of  the  judgment  hereinafter 
mentioned,  for  whom  he  worked,  and  that  said  plaintiff  recovered 
judgment  against  said  Whitney  in  a  suit  for  the  same  labor,  and  en- 
forced his  lien  for  said  labor  upon  the  logs  he  worked  upon,  by  a  sale 
of  the  same  by  D.  G.  Wilson,  deputy  sheriff,  on  the  execution,  at 
public  auction. 

It  was  agreed  that  the  plaintiff  was  hired  by  Henry  P.  Whitney 
and  worked  upon  said  logs  in  hauling  and  cutting  them.  That  be- 
fore hiring  him,  Whitney  showed  him  said  contract,  and  plaintiff 
read  it,  and  Whitney  told  him  he  had  no  other  way  of  paying  except 
through  the  contract;  that  there  was  due  from  Whitney  to  plaintiff 
for  his  labor  $50.85,  for  which  Whitney  gave  plaintiff  an  order  on 
defendants;  that  plaintiff  presented  the  order  soon  after  to  defend- 
ants, who  refused  to  accept  or  pay  it,  and  said  order  has  never  since 
been  paid,  unless  by  reason  of  a  sale  of  said  logs  upon  execution. 
Whitney  put  a  four-ox  team  into  the  woods,  and  hauled  logs  in  ac- 
cordance with  the  contract.  He  did  not  drive  the  logs,  but  the  de- 
fendants drove  them  and  charged  Whitney  for  the  same  in  account. 
There  has  been  no  settlement  between  Whitney  and  defendants  for 
the  operation.  Defendants  have  an  account  against  Whitney  for 
supplies,  etc.,  under  said  contract,  amounting  to  $1160.29,  and  a 
credit  of  $1020.73  in  his  favor,  and  there  was  a  balance  of  account 
against  Whitney  at  the  date  of  the  writ. 

On  May  22,  1853,  plaintiff  sued  said  Whitney  for  said  sum  of 
$50.85,  claiming  a  lien  for  labor  on  the  logs  marked  five  notches  and 
a  cross,  on  which  writ,  the  said  mark  of  logs  then  in  the  boom,  were 
attached  May  27,  1853;  the  action  was  defaulted  October  term,  1853; 
and  the  execution  duly  issued,  was  seasonably  put  into  the  hands  of 
D.  G.  Wilson,  a  deputy  sheriff,  who  seized  the  said  mark  of  logs, 
and  duly  advertised  and  sold  the  same  at  public  auction,  Nov.  3, 

count  of  a  debt  due  from  the  latter  to  him,  though  the  agreement  may  be  bonajide 
rescinded  by  the  parties  to  it  for  considerations  or  reasons  satisfactory  to  themselves, 
and  without  account  or  liability  to  the  creditor  who  is  not  a  party  to  it,  yet,  if  the  promi- 
see be  insolvent,  and  the  rescission  be  merely  a  forgiving  of  the  debt  for  the  mere  pur- 
pose of  defrauding  the  creditor  of  the  promisee,  or  protecting  tlie  promiser  against  hia 
liability,  the  rescission  will  not  avail  in  equity."  See  also  Youngs  v.  Trustees,  31 
N.  J.  Eq.  290 ;  Willard  v.  Worsham,  76  Va.  392. 


¥*- 


412  BOHANAN   V.   POPE.  [CHAP.   III. 

1853,  for  the  sum  of  five  dollars,  to  one  Folsom,  and  discharged 
upon  said  execution  the  sum  of  ninety-six  cents,  and  returned  the 
execution  satisfied  for  that  amount  and  no  more.  And  the  same 
has  never  been  satisfied  or  paid,  except  so  far  as  may  be  by  said 
sale  of  logs. 

If,  upon  the  above  statement  of  facts,  the  full  Court  should  be  of 
opinion  that  the  plaintiff  can  maintain  his  action,  the  defendants  are 
to  be  defaulted;  otherwise,  the  plaintiff  is  to  become  nonsuit. 

George  W.  Dyer,  for  plaintiff. 

George  Walker,  for  defendants. 

May,  J.  It  is  undoubtedly  true,  as  a  general  proposition,  that-ao 
action  can  be  maintaiued.._upon  a  contract,  except  by  somp  person 
who  is  a  party  to  it.     But  this  rule  of  law,  like  most  others,  has  its  j 

exceptions;    as,   for   instance,  where  money  has  been    paid    by  one  jytJy^ 
party,  to  a  second,  for  the  benefit  of  a  third,  in  which  case  the  latter, 
may  maintain  an  action  against  the  first  for  the  money.     So,  too, 
where  a  party  for  a  valuable  consideration  stipulates  with  another^ 
by  simple  contract,  to  pay  money  or  do  some  act  for  the  benefit  ^f_ 
a_ third  person,  the  latter,  for  whose  benefit  the  promise  is  made,  if 
there  be  no  other  objection  to  his  recovery  than  a  want  of  privity 
between  the  parties,  may  maintain  an  action  for  a  breach  of  such 
e'^gagement.     This  principle  of  law  is  now  well  established  both  in 
this  State  and  Massachusetts.     Hinckley  &  al.  v.  Fowler,  15  Maine, 
285;  Felton  v.  Dickinson,   10  Mass.   287;  Arnold  &  al.  r.   Lyman, 
17  Mass.  400;  Hall  v.  Marston,  17  Mass.  575;  Carnegie  v.  Morrison, 
2  Met.   381;  and  Brewer  v.  Dyer,  7  Cush.   337. 

In  this  last  case,  it  is  said  by  Bigelow,  J.,  as  the  opinion  of  the 
full  Court,  that  the  rule  "does  not  rest  upon  the  ground  of  any  actual 
or  supposed  relationship  between  the  parties,  as  some  of  the  earlier 
cases  would  seem  to  indicate;  nor  upon  the  reason,  that  the  defend- 
ant by  entering  into  such  an  agreement,  has  impliedly  made  himself 
the  agent  of  the  plaintiff;  but  upon  the  broader  and  more  satisfactory 
basis,  that  the  law,  operating  upon  the  act  of  the  parties,  creates  the 
duty,  establishes  the  privity,  and  implies  the  promise  and  obligation, 
on  which  the  action  is  founded." 

But  while  the  law  does  this  in  favor  of  a  third  person,  beneficially 
interested  in  the  contract,  it  does  not  confine  such  person  to  the 
remedy  which  it  so  provides ;  he  may,  as  the  authority  last  cited 
shows,  if  he  choose,  disregard  it  and  seek  his  remedy  directly  against 
the  party  with  whom  his  contract  primarily  exists.  But  if  he  does 
so,  then  such  party  may  recover  against  the  party  contracting  with 
him,  in  the  same  manner  as  if  the  stipulation  in  the  contract  had  been 
made  directly  with  him  and  not  for  the  benefit  of  a  third  person. 
The  two  remedies  are  not  concurrent  but  elective,  and  an  election  of 
the  latter  implies  an  abandonment  of  the  former. 

Applying  these  principles  to  the  facts  in  the  present  case,  it  ap- 
pears that  the  plaintiff,  he  being  one  of  "the  hired  men"  whom  the 


SECT.   I,]  ARNOLD    V.    NICHOLS.  413 

defendant  by  the  terms  of  his  contract  with  "Whitney  was  to  pay, 
might,  if  he  had  chosen  so  to  do,  have  brought  his  action  in  the  first 
instance  against  the  defendant,  relying  upon  the  beneficial  interest 
secured  to  him  in  said  contract;  or,  disregarding  this  remedy,  he 
might  have  elected  to  rely  upon  the  original  undertaking  of  Whitney, 
and  therefore  have  proceeded  against  him.  The  facts  show  that  he 
elected  the  latter  mode,  and  having  done  so,  he  must  be  regarded  as 
having  thereby  consented  that  Whitney  should  be  at  liberty  to  avail 
himself  of  the  funds,  which  he  had  set  apart  in  the  contract  for  the 
payment  of  the  plaintiff,  (if  any  such  there  were,)  in  order  that  he 
might  be  able  by  means  of  such  funds,  if  necessary,  to  satisfy  such 
judgment  as  the  plaintiff  might  recover  against  him.  By  such  elec- 
tion the  plaintiff  relinquished  all  claim  upon  the  particular  funds 
appropriated  for  his  benefit  and  gave  to  Whitney  the  control  and 
disposition  thereof. 

This  defence,  avoiding  and  repelling,  as  it  does,  the  promise  de- 
clared on,  may  properly  be  shown  under  the  general  issue.  Gould's 
Pleading  c.  6,  §§  47,  48.  Plaintiff  nonsuit.^ 

Tennet,  C.  J.,  and  Hathaway,  Appleton,  and  Goodenow,  JJ., 
concurred. 


JOHN  H.  ARNOLD  et  al.,  Exrs.,  etc..  Appellants,  v.  CHARLES 
H.  NICHOLS,  Impleaded,  etc..  Respondent. 

New  York  Court  of  Appeals,  January  24-February  1,   1876. 

{Reported  in  64  New  York,  117.] 

Earl,  J.  For  some  years  prior  to  the  15th  day  of  August,  1867, 
the  defendant  Bowen  had  been  engaged  in  the  city  of  New  York  in 
the  business  of  importing  and  dealing  in  fancy  goods,  and  on  that 
day  the  plaintiff's  testator,  Hinman,  loaned  to  him  to  be  used  in  his 
business  the  sum  of  $2,000.  Bowen  continued  in  business  alone 
until  January,  1868,  when  he  formed  a  copartnership  with  the  de- 
fendant Nichols,  and  Bowen  and  Nichols,  under  the  firm  name  of 
J,  M.  Bowen  &  Co.,  continued  to  carry  on  the  business  until  May, 
1869,  when  they  dissolved.  At  the  time  of  the  formation  of  the  co- 
partnership, the  evidence  tends  to  show,  and  we  must  assume  that 
the  jury  found,  that  Bowen  transferred  his  business  assets  to  the  firm 
of  .T.  M.  Bowen  &  Co.,  and  that  in  consideration  thereof,  the  firm 

1  Brewer  v.  Dyer,  7  Gush.  .339;  Warren  v.  Batchelder,  16  N.  H.  580;  Wood  v. 
Moriarty,  1.5  R.  I.  518,  522;  Phenix  Iron  Foundry  v.  Lockwood,  21  R.  I.  556,  ace; 
Henry  v.  Murphy,  54  Ala.  246  ;  Hall  v.  Alford,  49  s"  W.  Rep.  444  (Ky.) ;  Floyd  v.  Ort, 
20  Kan.  162;  Searing  v.  Benton,  41  Kan.  758,  contra.  Compare  Kansas  Pac.  Ry.  Co. 
j;.  Hopkins,  18  Kan.  499 ;  Piano  Mfg.  Co.  v.  Burrows,  40  Kan.  361. 


414  ARNOLD   V.   NICHOLS.  [CHAP.    III. 

assumed  and  agreed  to  pay  certain  specified  debts  of  Bowen,  among 
wliicla  was  Hinman's  debt  for  the  money  loaned  as  above  stated.  It 
was  expected  at  the  time  that  the  assets  would  exceed  the  debts  as- 
sumed by  the  firm  by  at  least  $30,000;  and  this  excess  of  $30,000 
was  to  be  credited  to  Bowen  on  the  books  of  the  firm  as  his 
share  of  capital  to  be  distributed.  The  assets  were  not  as  large  as 
expected,  but  were  shown  to  be  more  than  sufficient  to  pay  all  the 
debts  assumed.  They  were  first  to  be  used  to  pay  the  debts,  and  the 
balance  whatever  it  might  be,  was  to  be  credited  to  Bowen. 

Bowen  transferred  to  the  firm  the  assets  to  which  his  creditors  had 
the  right  to  look  for  the  payment  of  their  claims,  and  hence  the 
promise  of  the  firm  to  pay  such  claims  must  be  deemed  to  have  been 
made  for  their  benefit.  It  was  not  made  to  exonerate  Bowen  from 
the  payment  of  his  debts,  and  not  primarily  nor  directly  for  his 
benefit,  as  his  property  was  to  be  taken  to  pay  the  debts,  and  he 
was  still  to  remain  liable  as  one  of  the  principals  to  pay  them.  This 
case  is,  therefore,  unlike  the  case  of  Merrill  v.  Green,  55  N.  Y.  270, 
and  the  action  is  maintainable  upon  the  principles  laid  down  in  the 
case  of  Lawrence  v.  Fox,  20  N.  Y.  268,  and  also  recognized  in  Burr 
L'.  Beers,  24  N.  Y.  178;  Thorp  v.  Keokuk  Coal  Company,  48  N.  Y. 
253,  and  Claflin  v.  Ostrom,  54  N.  Y.  581.  Hinman  had  the  right  to 
adopt  the  promise  made  expressly  for  his  benefit. 

The  defendant  Nichols  alleged  in  bis  answer  that  he  was  induced 
to  enter  into  the  alleged  agreement  by  the  fraud  of  Bowen,  but  he 
did  not  allege  that  he  had  rescinded  the  agreement  on  that  account, 
or  that  he  had  ever  suffered  any  damage  on  account  thereof.  Upon 
the  trial  he  offered  to  prove  that  he  was  induced  to  enter  into  the 
agreement  by  fraud,  and  the  Court  excluded  the  evidence.  This 
ruling  was  right.  "VYheu  Nichols  discovered  that  he  had  been  de- 
frauded into  making  the  agreement,  he  could  have  repudiated  the 
agreement  on  that  ground,  given  up  his  interest  in  the  assets  trans- 
ferred to  the  firm  and  placed  them  again  in  the  hands  of  Bowen.  A 
creditor  could  not  adopt  the  agreement  which  Bowen  had  made  for 
his  benefit,  without  taking  it  subject  to  any  infirmity  which  attached 
to  it,  and  subject  to  any  assault  which  Nichols  could  make  upon  its 
validity.^     But  Nichols  could  not  retain  the  fruits  of  the  agreement 

1  Green  v.  Turner,  80  Fed.  Rep.  41 ;  86  Fed.  Rep.  837  ;  Benedict  v.  Hunt,  32  la.  27 ; 
Maxfield  v.  Schwartz,  45  Minn.  150  ;  Ellis  7>.  Harrison,  104  Mo.  270,  278  ;  Saunders  v. 
McClintock,  46  Mo.  App.  216  ;  American  Nat.  Bank  v.  Klock,  58  Mo.  App.  335  ;  Wise 
V.  Fuller,  29  N.  J.  Eq.  257  ;  Moore  v.  Ryder,  65  N.  Y.  438  ;  Trimble  v.  Strother,  25 
Ohio  St.  378 ;  Osborne  v.  Cabell,  77  Va.  462,  ace.  But  see  Fitzgerald  v.  Barker,  96 
Mo.  661  ;  Klein  v.  Isaacs,  8  Mo.  App.  568. 

Similarly  mistake  of  the  contracting  parties  is  a  defence  against  the  third  person. 
Epispo]ial  Mission  v.  Brown,  1.58  U.  S.  222  ;  Jones  v.  Higgins,  80  Ky.  409  ;  Bogart  ;•. 
Phillips,  112  Mich.  697  ;  Rogers  v.  Castle,  51  Minn.  428 ;  Gold  v.  Ogden,  61  Minn.  88  ; 
Bull  V.  Titsworth,  29  N.  J.  Eq.  73 ;  Stevens  Inst.  v.  Sheridan,  30  N.  J.  Eq.  23  ;  O'Neill 
V.  Clark,  33  N.  J.  Eq.  444  ;  Green  v.  Stone,  54  N.  J.  Eq.  387  ;  Crow  v.  Lewis.  95  N.  Y. 
423 ;  Wheat  r.  Rice,  97  N.  Y.  296,  or  failure  of  consideration.     Clay  v.  Woodrum,  45 


SECT.    I.]  SCHOOL   DISTEIOT    V.    LIVERS.  415 

and  refuse  on  account  of  fraud  to  bear  its  burdens.  Again,  fraud 
could,  in  no  aspect  of  the  case,  furnish  a  total  or  partial  defence  to 
the  action,  as  the  firm  had  more  than  sufficient  assets  transferred  to 
it  by  Bowen,  to  pay  all  the  debts  assumed.  Hence  there  was  no 
fraud  affecting  Hinman's  claim  or  right  of  recovery. 

The  charge  of  the  judge  at  the  trial  was  free  from  any  just  criti- 
cism. It  was,  that  if  the  jury  found  that  there  was  an  agreement 
between  Bowen  and  Nichols  in  entering  into  copartnership,  that 
J.  M.  Bowen  &,  Co.,  the  new  firm,  should  take  the  business  assets  of 
Bowen,  and  in  consideration  thereof  pay  the  specified  liabilities  of 
Bowen,  the  plaintiffs  were  entitled  to  recover,  and  that  if  they  found 
there  was  not  such  an  agreement,  they  were  not  entitled  to  recover. 
This  charge  fairly  covered  the  law  of  the  case. 

AVe  have  considered  the  other  exceptions  to  which  our  attention 
was  called  upon  the  argument,  and  they  are  so  clearly  without  founda- 
tion as  to  require  no  particular  notice. 

The  order  of  the  General  Term  must  be  reversed,  and  the  judgment 
entered  upon  the  verdict  affirmed,  with  costs. 

All  concur.  Order  reversed  and  judgment  accordingly. 

^f 

SCHOOL  DISTRICT  OF  KANSAS   CITY  ex  bel.   KOKEN      l\%^ 
IRON   WORKS,    V.   LIVERS  et  al..   Appellants. 

Missouri  Supreme  Court,  February  7,   1899. 

[Reported  in  147  Missouri,  580.] 

Burgess,  J.  Upon  the  trial  of  this  cause  in  the  Circuit  Court 
there  was  judgment  for  plaintiffs,  from  which  defendant  sureties  ap- 
pealed to  the  Kansas  City  Court  of  Appeals,  where  the  judgment  of 
the  Circuit  Court  was  reversed. 

Plaintiffs  then  filed  motion  for  rehearing  which  was  overruled,  and 
the  cause  certified  to  this  Court  because  one  of  the  judges  of  that 
Court  was  of  the  opinion  that  the  decision  rendered  is  in  conflict  with 
Board  of  President  and  Directors  of  the  St.  Louis  Public  Schools  v. 
Woods  et  a!.,  77  Mo.  197. 

The  facts  are  as  follows :  — 

Defendants  Livers  and  Pullman  having  acquired  the  contract  at 
the  price  of  $72,500  for  erecting  an  addition  to  the  Central  High 
School  in  Kansas  City,  Missouri,  were  required  to  give  and  did  exe- 
cute bond  in  the  sum  of  $54,000,  conditioned  that  the  bond  was 

Kan.  116  ;  Amonett  v.  Montague,  75  Mo.  43  ;  Judson  v.  Dada,  79  N.  Y.  373,  379  ;  Dun- 
ning V.  Leavitt,  85  N.  Y.  30 ;  Crow  i-.  Lewis,  95  N.  Y.  423 ;  Gifford  v.  Father  Matthew 
See,  104  N.  Y.  139  ;  Osborne  v.  Cabell,  77  Va.  462.  But  see  Hayden  v.  Snow,  9  Biss. 
511  ;  14  Fed.  Rep.  70;  8.  c.  sub  nom.  ;  Hayden  v.  Devery,  3  Fed.  Rep.  782 ;  Blood  v. 
Crew  Levick  Co.,  177  Pa.  606. 


416  SCHOOL    DISTRICT   V.    LIVERS.  [CHAP.   HL 

executed  not  only  for  the  protection  of  the  school  district,  but  also 
for  the  benefit  of  all  parties  who  might  furnish  materials  used  in  the 
building,  and  that  any  such  party,  having  unpaid  bills  therefor, 
might,  in  the  name  of  the  school  district,  maintain  an  action  upon 
the  bond  to  recover  the  amount  of  such  bills. 

Schmidt  &  Wible  and  David  Pullman  were  securities  on  the  bond. 
Pullman  has  since  deceased  and  Anna  A.  Pullman,  administratrix, 
represents  his  estate. 

The  decision  rendered  by  the  court  of  appeals  is  not  only  in  con- 
flict with  the  Board  of  President  and  Directors  of  the  St.  Louis  Public 
Schools  V.  Woods  et  al.,  77  Mo.  197,  but  is  in  conflict  with  the  more 
recent  decisions  of  this  Court  in  City  of  St.  Louis  to  use  of  Glencoe 
Lime  and  Cement  Co.  v.  Von  Phul  et  al.,  133  Mo.  561,  and  Devers 
V.  Howard,  144  Mo.  671,  in  which  it  is  held  that  a  contract  between 
persons  made  upon  a  valid  consideration  may  be  enforced  by  a  third 
person,  though  not  named  in  the  contract,  when  the  obligee  owes  to 
him  some  duty,  legal  or  equitable,  which  would  give  him  a  just  claim, 
and  must  therefore  be  overruled. 

It  is  contended  by  defendants  that  the  evidence  showed  that  the 
school  district  paid  Livers  and  Pullman,  the  contractors,  in  excess 
of  eighty  per  cent  of  the  amount  due  them  on  their  contract,  which 
was  in  violation  of  its  terms,  and  as  such  payment  was  without  the 
knowledge  or  consent  of  the  securities,  that  the  defendants,  Anna 
Pullman,  administratrix,  and  Schmidt  and  Wible,  were  thereby  re- 
leased. Defendants  asked  a  declaration  of  law  presenting  this  theory 
of  the  case  which  was  refused,  and  as  there  was  evidence  tending  to 
show  such  payment,  we  take  it  for  granted  that  it  was  refused  upon 
the  ground,  that,  even  if  true,  it  did  not  have  the  effect  to  release 
defendants  upon  the  bond,  for  causes  of  action,  if  there  were  such, 
which  had  accrued  upon  the  bond  before  that  time. 

Plaintiff's  rights  are  original  and  independent  of  the  school  dis- 
trict, the  board  being  constituted  under  the  bond  the  trustee  of  an 
express  trust.  Board  v.  Woods,  snp7'a.  The  bond  is  dual  in  its 
nature,  being  for  the  benefit  and  protection  of  the  school  district 
against  loss  or  damage  for  the  non-fulfilment  of  their  contract  by 
the  contractors,  and  the  payment  by  them  of  laborers  for  work  done, 
and  of  material-men  for  material  furnished,  rights  which  when  once 
fixed  could  not  be  destroyed  or  taken  away  by  any  act  of  the  school 
district. 

In  Doll  V.  Crume,  41  Neb.  655,  a  city  let  a  contract  for  grading  its 
streets  to  one  Davis  which  McGavock  and  Doll  signed  as  his  securi- 
ties. The  contract  provided  among  other  things  that  Davis  should 
be  paid  forty-five  per  cent  of  the  cost  of  the  work  when  two-thirds 
of  it  was  completed;  that  he  would  pay  for  all  labor  and  material 
furnished  him  in  executing  the  contract,  and  complete  the  work  in 
one  hundred  and  eighty  days.  The  contract  recited  that  "said  par- 
ties of   the  third  part  (McGavock  and   Doll)  hereby  guaranty  that 


SECT.    I.J  SCHOOL   DISTRICT   V.    LIVERS.  417 

said  party  of  the  second  part  (Davis)  will  well  and  truly  perform  the 
covenant  hereinbefore  contained  to  pay  all  laborers  employed  on  said 
work ;  and  if  said  laborers  are  not  paid  in  full  by  said  party  of  the 
second  part,  that  said  party  of  the  third  part  hereby  agrees  to  pay 
for  said  labor,  or  any  part  thereof,  which  shall  not  be  paid  by  said 
second  party  within  ten  days  after  the  money  for  said  labor  becomes 
due  and  payable."  On  completion  of  two-thirds  of  the  work  the  city 
paid  Davis  ninety  per  cent  of  the  estimated  cost  thereof.  It  also 
granted  Davis  an  extention  of  time  for  the  completion  of  his  con- 
tract beyond  the  time  fixed  thereby.  It  was  held  "(1)  That  the  con- 
tract between  the  city  and  Davis  and  his  sureties  and  the  promises 
and  liabilities  of  the  latter  thereon,  were  of  a  dual  nature,  —  a 
promise  to  the  city  that  Davis  should  perform  the  work  in  the  time 
and  manner  he  had  agreed,  and  a  promise,  in  effect,  to  Crume  to 
pay  him  for  the  labor  he  should  perform  for  Davis;  (2)  that  the 
city's  overpaying  Davis  and  extending  the  time  of  performance  of 
his  contract  did  not  release  the  sureties  from  the  contract  to  pay 
Davis'  laborers;  (3)  that  if  the  city  had  precluded  itself  from  call- 
ing on  the  sureties  to  make  good  to  it  any  default  of  Davis,  its  acts 
did  not  estop  the  laborers  of  Davis  from  enforcing  against  the  sure- 
ties their  contracts  and  promises." 

Paraphrasing  what  is  said  in  that  case,  the  case  stands  just  as  if 
Livers  and  Pullman  and  their  sureties  had  made  the  written  promise 
directly  to  the  Koken  Iron  Works  instead  of  to  the  school  district. 
Then  how  can  it  be  said  that  any  act  of  the  school  district  in  over- 
paying Livers  and  Pullman  can  release  them  or  their  sureties  from 
their  contract  with  the  Koken  Iron  Works.  It  may  be  that  the  school 
district  by  its  actions  has  precluded  itself  from  recovering  from  the 
sureties  of  the  contractors  for  any  default  of  theirs  in  the  premises, 
but  it  by  no  means  follows  that  the  school  district's  action  estops 
the  Koken  Iron  Works.  In  other  words,  there  were  two  contracts 
with  one  consideration  to  support  both.  To  the  same  effect  is  Lyman 
V.  Lincoln,  38  Neb.  794.  ^ 

Henricus  v.  Englert,  137  N.  Y.  488,  was  an  action  upon  a  bond 
executed  by  defendant  as  surety  for  one  Leonard  Vogel.  Plaintiffs 
were  the  original  contractors.  Thereafter  they  sub-let  the  carpenter's 
work  upon  the  building  to  Vogel,  who  thereupon  executed  to  them  a 
bond  in  the  penal  sum  of  $5,000,  conditioned  that  Vogel,  "shall  per- 
form all  the  obligations  and  agreements  made  and  entered  into  with 
the  said  Henricus  &  Son,  agents,  and  shall  erect,  work,  make  and 
complete  a  certain  town  hall  and  fire  department  building  for  the 
village  of  Bockport,  New  York,  agreeable  to  the  plans,  and  in  per- 
fect keeping  with  the  revised  carpenter's  specifications  prepared  for 
the  same  by  H.  B.  Gleason,  architect."  After  the  completion  of  the 
building  the  village  claimed  that  it  had  not  been  erected  according 
to  contract,  and  claimed  damages  on  account  of  defects  in  the  work 

1  Kaufmann  v.  Cooper,  46  Neb.  644  ;  King  r.  Murphy,  49  Neb.  670,  ace. 
VOL.  I.  —  27 


418  ST.  Joseph's  association  v.  magnier.     [chap.  hi. 

which  were  thereafter  adjusted  with  Yogel  at  the  sum  of  $550,  which 
amount  was  deducted  from  the  contract  price  payable  to  plaintiffs. 
Thereafter  plaintiffs  began  suit  on  the  bond,  alleging  breaches  thereof 
and  claiming  damages  in  the  sum  of  $5,000  the  penalty  of  the  bond. 
The  defence  was  that  at  the  time  of  the  execution  of  the  bond  there 
was  an  arrangement  between  plaintiffs  and  Vogel  by  which  he,  Vogel, 
was  to  become  the  original  contractor  for  the  work  done  by  him,  and 
that  thereupon  his  bond  was  assigned  and  delivered  to  the  village  as 
security  for  the  work  by  him,  and  that  after  the  work  was  completed 
all  matters  of  difference  between  the  plantiffs  and  Vogel,  and  between 
Vogel  and  the  village,  or  in  any  way  growing  out  of  his  contract, 
or  connected  therewith,  were  adjusted  and  settled.  It  appeared  that 
some  changes  and  alterations  were  made  in  the  plans  between  the 
architect,  Vogel,  and  the  village,  without  the  consent  of  plaintiffs. 
It  was  held  that  the  changes  did  not  release  defendant  from,  or  affect 
his  liability  upon,  the  bond. 

At  the  time  of  the  payment  of  the  eighty  per  cent  the  Koken  Iron 
Works  had  already  complied  with  its  contract,  and  its  right  of  action 
accrued,  which  the  school  district  could  by  no  act  of  its  board  take 
away,  or  deprive  it  of. 

We  therefore  reverse  the  judgment  of  the  Kansas  City  Court  of  Ap- 
peals, with  directions  to  affirm  the  judgment  of  the  Circuit  Court. 

Gantt,  p.  J.,  and  Shebwood,  J.,  concur.^ 


THE   NEW  ORLEANS   ST.   JOSEPH'S  ASSOCIATION  v. 
A.    MAGNIER. 

Louisiana  Supreme  Court,  May,  1861. 

[Reported  in  16  Louisiana  Annual,  338.] 

VooRHiES,  J.  The  defendant,  Magnier,  and  several  other  hatters 
in  the  city  of  New  Orleans,  entered  into  a  contract  to  close  their  re- 
spective stores  on  Sundays.  They  stipulated,  in  express  terms,  that 
those  who  would  violate  this  obligation,  would  become  subject,  for 
each  infraction,  to  a  fine  of  one  hundred  dollars  for  the  benefit  of  the 
asylum  of  the  St.  Joseph's  Orphans. 

A.  Magnier  having,  on  several  Sundays,  opened  his  store,  the 
present  suit  was  brought  to  recover  the  stipulated  fine. 

To  the  general  rule  that  parties  to  a  contract  cannot  stipulate  but 

1  Non-performance  of  his  pronnise  by  the  promisee  was  held  a  defence  to  an  action 
bv  the  third  person  in  Episcopal  Mission  v.  Brown,  158  U.  S.  222  ;  Pugh  v.  Barnes, 
108  Ala.  167  ;  Stuyvesant  v.  Western  Mortgage  Co.,  22  Col.  28, 33  ;  Miller  v.  Hughes, 
95  la.  223.  See  also  Willard  v.  Wood,  164  U.  S.  502,  521  ;  Loeb  v.  Willis,  100  N.  Y. 
231.  But  see  apparently,  contra,  Cress  v.  Blodgett,  64  Mo.  449;  Commercial  Bank  v. 
Wood,  7  W.  &  S.  89 ;  Fulmer  v.  Wightman,  87  Wis.  573. 


SP:CT.    II.]  MOWSE   V.   EDNEY.  419 

for  themselves,  there  is  an  exception  when  one  makes,  in  his  own 
name,  some  advantage  for  a  third  person  the  condition  or  considera- 
tion of  a  commutative  contract,  or  onerous  donation.  C.  C.  1884, 
1896.  He,  for  whose  benefit  this  advantage  is  stipulated,  has  an 
equitable  action  to  enforce  the  stipulation,  when  he  has  signified  his 
assent  in  the  premises.     C.  P.  35. 

The  text  is  clear  that  the  advantage  must  be  the  condition  or  con- 
sideration of  the  contract:  hence  it  is  that  a  penal  obligation  cannot 
be  stipulated  for  the  benefit  of  third  persons.  6  Toullier,  No.  846; 
Holland  de  Villargues,  2  Diet.  Not.  No.  50;  C.  N.   1121. 

A  penal  clause,  being  a  secondary  obligation  having  for  its  object 
the  enforcement  of  a  primary  obligation,  cannot  be  assimilated  to 
a  condition  or  consideration.     C.   C.   2113. 

"  The  penal  obligation,  says  C.  C.  2115,  has  this  in  common  with 
a  conditional  obligation,  that  the  penalty  is  due  only  on  condition 
that  the  first  part  of  the  contract  be  not  performed.  But  it  differs 
from  it  in  this,  that  in  penal  contracts  there  must  be  always  a  princi- 
pal obligation,  independent  of  the  penalty;  while  in  conditional  con- 
tracts, there  is  no  obligation,  unless  the  condition  happens." 

The  stipulation  to  pay  a  fine  of  one  hundred  dollars  for  each  vio- 
lation of  the  contract,  is,  in  the  very  language  of  the  parties,  a  penal 
obligation.  Its  very  object  and  purpose  is  to  enforce  the  primary 
obligation,  which  each  of  the  contracting  parties  assumed,  to  close 
his  respective  store  on  Sundays.  It  is  a  strained  and  unnatural  con- 
struction to  say  that  the  contract  was  entered  into  with  the  view  of 
making  a  donation  to  the  plaintiffs,  dependent  upon  the  condition 
that  any  of  the  parties  would  not  close  their  stores.  This  was  a  com- 
mutative contract  with  a  penal  clause,  not  a  conditional  donation. 

It  is,  therefore,  ordered  and  decreed,  that  the  judgment  of  the  Dis- 
trict Court  be  reversed,  and  that  the  plaintiffs'  demand  be  rejected, 
with  costs  in  both  courts. 

Land,  J.,  absent,  concurring. 


SECTION  II. 
ASSIGNMENT  OF  CONTRACTS. 


MOWSE   V.    EDNEY. 
In  the  Queen's  Bench,  Easter  Term,   1600. 

{Reported  in  Rollers  Abridgment,  20  placitum,  12.] 

If  a  is  indebted  to  B  by  bill  and  B  indebted  to  C,  and  B  in  pay- 
ment of  his  debt  to  C  assigns  A's  bill  to  him,  and  before  the  day  for 
the  payment  of  the  money  A  comes  to  C  and  promises  him  that  if 


420  PENSON  &  higbed's  case,  [chap,  hi, 

he  will  forbear  to  enforce  the  payment  of  the  money  then  he,  A,  will 
pay  him;  upon  which  C  forbears.  Still  there  is  no  consideration  to 
maintain  any  action  on  this  promise,  because  notwithstanding  the 
assignment  of  the  bill,  still  the  property  of  the  debt  remains  always 
in  the  assignor. 


PENSON   AND  HIGBED'S   CASE. 
In  the  King's  Bench,  Trinity  Term,   1588. 

[Reported  in  4  Leonard,  99.] 

In  assumpsit,  the  plaintiff  declared  that  in  consideration  that  he 
by  his  servant  had  delivered  to  the  defendant  two  bills  of  debt 
amounting  to  the  sum  of  801.  soluhiles  eidem  querenti  to  be  received 
by  the  defendant  at  Roan  in  Normandy,  to  his  own  use,  the  defend- 
ant promised  to  pay  to  the  plaintiff  60Z.,  and  upon  this  matter,  judg- 
ment was  given;  and  now  a  writ  of  error  was  brought  and  assigned 
for  error,  because  it  is  not  shewed  in  the  declaration  that  the  bills 
were  sealed  or  that  they  were  made  to  the  plaintiff,  and  here  is  not 
any  consideration,  for  the  defendant  hath  not  any  remedy  to  compel 
the  parties  to  pay  the  said  debts  if  they  refuse.  Godfrey:  If  the 
money  be  not  paid  at  Roan  to  the  defendant,  he  shall  have  an  action 
upon  the  case,  for  this  is  an  assumpsit  in  law,  which  Wray  concessit^ 
for  it  is  a  mutual  promise  and  agreement:  and  it  was  argued  to  the 
contrary  that  here  is  not  any  different  consideration,  for  it  doth  not 
appear  that  the  defendant  hath  any  recovery  for  to  recover  the  money. 
And,  13  Eliz.,  it  was  holden,  that  where  the  plaintiff  declared,  in  an 
action  upon  the  case,  that  in  consideration  that  he  had  delivered  a 
bill  of  debt  to  the  defendant,  and  hath  made  a  letter  of  attorney  upon 
it,  etc.,  the  defendant  promised  to  pay  to  the  plaintiff  20/.,  and  be- 
cause that  the  plaintiff  (notwithstanding  that)  might  release  the  debt, 
or  revoke  the  letter  of  attorney,  and  so  defeat  the  defendant  of  the 
whole  profit,  etc.,  that  the  action  upon  the  matter  did  not  lye.  Also 
for  another  cause  the  consideration  is  not  sufficient,  for  it  is  illegal 
because  maintenance,  but  if  it  was  upon  the  consideration  precedent 
it  had  been  good  enough.  As,  if  I  be  indebted  to  A,  and  B  is  indebted 
to  me,  I  may  assign  to  A  the  debt  which  B  oweth  me.  Golding : 
Although  the  consideration  be  but  of  small  value,  yet  it  is  good 
enough.  And  if  A,  in  consideration  B  will  assure  to  him  the  manor 
of  D,  promise  to  pay  to  B  lOOZ.,  although  the  party  hath  not  any  in- 
terest or  title  to  it,  yet  it  is  good,  and  also  though  the  consideration  be 
executory,  yet  it  is  valuable;  for  if  the  money  be  not  paid  at  Roan, 
the  defendant  shall  have  an  action  upon  the  case  against  the  plaintiff. 
It  was  also  objected  that  upon  the  declaration  it  doth  not  appear  that 
the  defendant,  if  the  two  bills  be  not  paid,  may  have  an  action  upon 


SECT.   II.]  ALLEN'S   CASE.  421 

the  case  against  the  plaintiff,  for  there  is  not  any  express  assumpsit, 
on  the  plaintiff's  part,  that  the  monies  due  by  the  bills  to  the  plain- 
tiff shall  be  paid  to  the  defendant;  for  if  it  had  been  so,  then  it  had 
been  good,  for  then  there  had  been  a  reciprocal  promise  which  is  not 
here,  nor  can  be  collected  by  any  words  in  the  declaration.  Cook  : 
It  doth  not  appear  upon  the  declaration  by  whom  nor  to  whom  the 
money  due  by  the  two  bills  shall  be  paid,  for  it  may  be  that  they  are 
due  to  the  defendant,  and  then  the  delivery  of  the  two  bills  is  not  any 
consideration.  Quod  Clench  and  Gawdy,  concesserunt.  The  case 
was  adjourned. 


ALLEN'S   CASE,   1584. 

[Reported  in  Owen,  113.] 

A  scire  facias  issued  out  in  the  name  of  the  Queen  to  shew  cause 
why  execution  of  a  debt  which  is  come  to  the  Queen  by  the  attainder 
of  J.  S.  should  not  be  had.  The  defendant  pleaded  that  the  Queen 
had  granted  over  this  debt  by  the  name  of  a  debt  which  came  to  her 
by  the  attainder  of  J.  S.  and  all  actions  and  demands,  etc.,  upon 
which  the  plaintiff  demurred.  And  the  question  was,  if  the  patentee 
might  sue  for  this  in  the  name  of  the  Queen,  without  speciall  words. 
And  two  precedents  were  cited  that  he  may,  1  Pasch.,  30  Eliz.  rot. 
191,  in  the  Exchequer,  where  Greene,  to  whom  a  debt  was  due,  was 
attainted,  and  the  Queen  granted  over  this  debt,  and  all  actions  and 
demands,  and  a  scire  facias  was  sued  for  him  in  the  name  of  the 
Queen,  also  in  the  32  Eliz.  rot.  219. 

Mabb  of  London  was  indebted  by  bond,  and  the  debt  came  to  the 
Queen  by  the  attainder,  and  she  granted  it  to  Bones,  and  all  actions 
and  demands,  and  a  scire  facias  was  issued  out  in  the  name  of  the 
Queen.  And  the  principal  case  was  adjourned.  But  the  patentee 
had  express  words  to  sue  in  the  name  of  the  Queen,  although  it  was 
not  so  pleaded.^ 

1  "  Where  a  bond  is  assigned  over  with  a  letter  of  attorney  therein  to  sue,  and  a 
covenant  not  to  revoke,  but  that  the  money  shall  come  to  the  use  of  the  assignee, 
although  the  obligee  be  dead,  yet  the  court  will  not  stay  proceedings  in  a  suit  upon 
the  bond  in  the  obligee's  administrator's  name,thougli  prosecuted  without  his  consent; 
for  that  those  assignments  to  receive  the  money  to  the  assignee's  own  use,  with  cove- 
nants not  to  revoke,  and  also  with  a  letter  of  attorney  in  them,  although  they  do  not 
vest  an  interest,  yet  have  so  far  prevailed  in  all  courts,  that  the  grantee  hath  such  an 
interest  that  he  may  sue  in  the  name  of  the  part}-,  his  executors  or  administrators." 
Lilly's  Practical  Register,  48  (1710). 


422  FASHION    V.    ATWOOD.  [CHAP.    HI. 

HARVEY   V.   BATEMAN,    1596. 

[Reported  in  M^oy,  52.] 

If  a  man  assign  an  obligation  to  another  for  a  precedent  debt 
due  by  hiin  to  the  assignee,  there,  that  is  not  maintenance;  but  if  he 
assign  it  for  a  consideration  then  given  by  way  of  contract,  that  ia 
maintenance.^ 


BACK  WELL  v.   LITCOTT. 

In  the  King's  Bench,  Hilary  Ter3I,  1669. 

[Reported  in  2  Keble,  331.] 

NoTA,  On  motion  of  Jones  to  stay  a  trial  of  bankrupsie  of  one 
Colonell,  it  was  said,  that  if  J.  be  obliged  to  J.  S.  and  he  before 
bankrupsie  assign  the  bond,  this  is  liable  to  after-bankrupsie  of 
J.  S.  being  onely  suable  in  his  name,  per  Keeling  and  Twisden. 


FASHION  V.  ATWOOD. 
In  Chancery,  July  19,   1680. 

[Reported  in  2  Cases  in  Chancery,  36.] 

Pearson,  living  in  London,  was  agent  and  factor  for  Atwood,  now 
deceased,  to  sell  Norwich  stuffs  in  London,  which  Atwood  sent  him 
from  Norwich :  and  in  the  management  of  this  trade,  Atwood  charged 
Pearson  with  bills  of  exchange;  and  it  so  fell  out  that  Pearson  had 
sold  in  Atwood's  name  divers  clothes  for  money,  payable  at  future 
days;  and  doubting  he  had  not  goods  in  his  hands  to  make  good 
what  he  had  undertaken  by  accepting  Atwood's  bills,  informs  Atwood 
of  it,  and  Atwood  agrees,  that  Pearson  secure  himself  out  of  what 
effects,  etc.,  he  had.  At  this  time  Atwood  was  indebted  to  Eborne 
and  others  by  bond;  and  Pearson  was  likewise  indebted  to  others  on 
his  own  account;  Pearson  by  word  assigns  to  his  creditors  the  debts 
which  were  due  to  Atwood;  Atwood  and  Pearson  both  die:  the 
administrators  of  Pearson,  and  the  assignees  of  the  debts  due  to 
Atwood,  but  assigned  by  Pearson  to  his  creditors,  sue  the  execu- 
trix of  Atwood  for  to  have  the  benefit  of  the  debts  due  to  Atwood 
for  his  goods  sold  by  Pearson  but  assigned  by  Pearson  to  his  own 
creditors. 

1  See  for  further  early  authorities  on  the  assignment  of  choses  in  action,  3  Harv.  L. 
Rev.  336,  by  Professor  Ames. 


SECT.    II.]  FASHION   V.   ATWOOD.  423 

The  question  was,  whether  the  assignees  of  the  debts  by  parol  made 
by  Pearson  and  the  parol  agreement  by  Atwood,  that  the  goods  and 
debts  which  Pearson  had  and  contracted  for  would  be  his  security 
for  his  undertaking  for  Atwood,  would  prevail  against  the  creditors 
of  Atwood,  especially  such  creditors  of  Atwood  as  had  bonds;  for 
the  persons  who  had  bought  Atwood' s  goods  of  Pearson  did  know 
that  the  goods  were  Atwood's  and  not  Pearson's,  and  entered  in 
Pearson's  books  as  debts  due  to  Atwood,  not  to  Pearson;  and  there- 
upon we  of  counsel,  with  the  executor  of  Atwood  and  the  creditor 
of  Atwood  by  bond,   insisted:  — 

1st.  That  the  goods  were  sold  as  Atwood's  goods,  and  the  buyers 
entered  in  Pearson's  books  as  a  debt  to  Atwood,  Pearson  had  no 
remedy  on  the  contract;  but  Atwood  was  solely  owner  of  the  debt. 

2d.  That  the  debt  being  a  thing  in  action,  is  not  transferable  by 
law;  so  as  notwithstanding  the  agreement  of  Atwood,  he  still  in  law 
remained  creditor;  and  this  is  a  case  between  actors  and  transactors 
in  England,  not  of  merchants,  who  by  law-merchant  may  assign 
debts. 

3d.  That  though  in  equity  Pearson  might  retain,  or  be  entitled  in 
equity  to  the  debt  against  Atwood  himself;  yet  now  the  case  is 
changed  by  the  death  of  Atwood,  for  now  the  creditors  of  Atwood 
by  bond  are  in  a  better  case  than  Pearson,  who  had  no  title  but  by 
parol ;  and  if  Pearson  would  sue  the  executrix  of  Atwood,  she  could 
not  pay  him;  but  if  she  did,  she  would  commit  a  devastavit,  and 
break  her  oath  as  executrix,  and  the  assignees  of  Pearson  could  be 
in  no  better  case  than  Pearson  and  his  executors  were. 

4th.  The  creditors  of  Atwood  by  bond  had  a  good  title  in  law, 
to  be  satisfied  out  of  his  estate  and  debts,  and  they  had  done  nothing 
to  prejudice  their  title:  and  the  case  is  not  the  same,  for  the  goods 
remaining  unsold  as  for  debts. 

The  Lord  Chancellor.  By  the  agreement  Pearson  had  a  good 
title  in  equity  to  the  debts,  which  in  equity  are  become  his,  and  are 
no  longer  Atwood's;  and  therefore  decreed  for  the  creditors  of 
Pearson.^ 

Methinks  there  was  another  equity  for  Pearson,  but  was  not  men- 
tioned or  insisted  on,  viz. ;  that  in  case  of  merchant  and  factor,  the 
merchant  would  not  have  account  from  the  factor;  but  if  the  factor 
were  out  more  than  could  be  demanded  from  his  factor  (as  in  this  case 
it  happened),  the  merchant  would  first  make  even. 

1  See  also  s.  c.  2  Ch.  Cas.  6.     Compare  Mitchell  v.  Edes,  2  Vern.  391. 


424  ROW   V.   DAWSON.  [CHAP.   IH. 

CROUCH   V.   MARTIN    &   HARRIS,    et  al. 
In  Chancery,  Michaelmas  Term,   1707. 

[Reported  in  2  Vernon,  595.] 

The  plaintiff  lent  Arthur  Harris,  late  husband  of  the  defendant, 
100/.  on  Bottom-Rhea;  and  as  a  farther  security  assigned  to  the 
plaintiff  the  wages  that  would  become  due  to  him  in  the  voyage  to 
the  Indies,  as  chirurgeon  of  the  ship  at  4/.  10s.  per  month;  the  ship 
returned  safe  to  London,  and  145A  became  due  on  the  Bottom-Rhea 
bond.  Arthur  Harris  died  in  the  voyage;  the  defendant,  his  widow, 
took  out  administration;  and  there  being  a  bond  given  by  her  hus- 
band on  her  marriage  to  leave  her  400/.  if  she  survived  him,  she  con- 
fessed judgment  thereon,  and  insisted  that  judgment  ought  to  be  first 
paid,  and  the  wages  due  to  the  husband  applied  to  that  purpose. 

Per  cur.  Seamen's  wages  are  assignable,  and  the  assignment 
specifically  binds  the  wages;  and  in  truth  the  advancing  the  100/.  on 
the  credit  of  the  wages  is,  as  it  were,  paying  the  wages  beforehand; 
and  the  seaman  or  his  widow  must  not  have  his  wages  twice. 

It  is  a  chose  en  action.,  being  due  by  contract,  although  the  service 
not  then  done,  and  a  chose  en  action  is  assignable  in  equity  upon 
a  consideration  paid. 


ROW   V.   DAWSON. 

In  Chancery,  November  27,   1749. 
[Reported  in  1  Vesey,  Senior,  331.] 

ToNSON  and  Cowdery  lent  money  to  Gibson,  who  made  a  draft  on 
Fwinburn,  the  deputy  of  Horace  Walpole,  viz.  "  Out  of  the  money 
due  from  Horace  Walpole  out  of  the  Exchequer,  and  what  will  be 
due  at  Michaelmas  pay  to  Tonson  400/.,  and  to  Cowdery  200/.  value 
received." 

Gibson  became  bankrupt:  and  the  question  was,  whether  the  de- 
fendants Tonson  and  the  executors  of  Cowder}'  were  first  entitled  by 
a  specific  lien  upon  this  sum  due  to  the  estate  of  Gibson;  or  whether 
the  plaintiffs,  the  assignees  under  the  commission,  are  entitled  to  have 
the  whole  sum  paid  to  them;  it  being  insisted  for  them,  that  this 
draft  was  in  the  nature  of  a  bill  of  exchange,  and  that  the  property 
was  not  divested  out  of  the  bankrupt  at  the  time  of  the  bankruptcy  in 
law  or  equity. 

Lord  Chancellor.  At  first  I  a  little  doubted  about  my  own  juris- 
diction :  and  whether  the  plaintiffs  ought  not  to  have  gone  into  the 


SECT,   n.]  ROW   V.   DAWSON.  425 

Exchequer,  as  being  a  court  of  revenue ;  for  this  is  not  a  personal 
credit  given  to,  or  demand  upon  the  officer,  but  to  be  paid  out  of 
that  money  issued  out  of  the  Exchequer  to  the  officer;  and  this  is 
on  warrant,  to  be  paid  out  of  the  revenue  of  the  crown  for  public 
services.  But  there  is  something  in  the  present  case  delivering  it 
from  that;  the  officer  admits,  he  has  received  a  sum  of  money  ap- 
plicable to  this  demand,  which  brings  it  to  the  old  case  of  a  liberate, 
which  a  person  has  under  the  great  seal  for  the  payment  of  money ; 
upon  admission  that  the  officer  had  money  in  his  hands  applicable 
to  the  payment,  and  proof  thereof,  that  would  give  courts  of  law 
a  jurisdiction,  so  that  an  action  of  debt  might  be  maintained  on  the 
liberate. 

This  demand,  and  the  instrument  under  which  the  defendants 
claim,  is  not  a  bill  of  exchange,  but  a  draft;  not  to  pay  generally, 
but  out  of  his  particular  fund,  which  creates  no  personal  demand; 
therefore  not  a  draft  on  personal  credit  to  go  in  the  common  course 
of  negociation,  which  is  necessary  to  bills  of  exchange,  by  draft  on 
the  general  credit  of  the  person  drawing,  the  drawee,  and  the  in- 
dorser,  without  reference  to  any  particular  fund.  The  first  case  of 
which  kind,  I  remember  to  have  been  determined  in  B.  R.  not  to  be 
a  bill  of  exchange,  was  a  draft  by  an  officer  on  the  agent  of  his  regi- 
ment to  be  paid  out  of  his  growing  subsistauce.  Then  what  is  it,  for 
it  must  amount  to  something?  It  is  an  agreement  for  valuable  con- 
sideration beforehand  to  lend  money  on  the  faith  of  being  satisfied 
out  of  this  fund;  which  makes  it  a  very  strong  case.  If  this  is  not 
a  bill  of  exchange,  nor  a  proceeding  on  the  personal  credit  of  Swin- 
burn  or  Gibson,  it  is  a  credit  on  this  fund,  and  must  amount  to  an 
assignment  of  so  much  of  the  debt;  and  though  the  law  does  not 
admit  an  assignment  of  a  chose  in  action,  this  Court  does;  and  any 
words  will  do;  no  particular  words  being  necessary  thereto.  In  the 
case  of  a  bond  it  may  be  assigned  in  equity  for  valuable  considera- 
tion, and  good  although  no  special  form  used.  Suppose  an  obligee 
receives  the  money  on  the  bond,  and  there  is  wrote  on  the  back  of 
it  "Whereas  I  have  received  the  principal  and  interest  from  such 
a  one,  do  you  the  obligor  pay  the  money  to  him;"  this  is  just  that 
case;  only  it  is  not  a  debt  arising  from  specialty:  therefore  like  an 
assignment  of  rent  by  direction  to  a  tenant  or  steward  to  pay  so  much 
of  a  year's  rent  to  a  third  person.  The  case  of  Ryal  v.  Rowles,  j^ost^ 
now  under  the  consideration  of  the  Court,  occurred  to  me.  There 
the  assignment  of  debts,  of  vhich  no  possession,  came  in  question; 
!)ut  those  are  debts  depending  on  partnership,  and  mentioned  there 
how  far  the  assignment  of  a  bond  should  be  supported  against  the 
assignees  under  the  commission:  and  it  is  clear,  that  they  have  been 
supported  where  the  bond  has  been  delivered  over;  but  if  not,  some 
doubt  has  been,  whether  it  should  be  supported  on  the  foot  of  the 
clause  in  the  statute,  J.  1.  But  this  is  clear  of  that  doubt,  because 
this  was  a  debt  due  to  Gibson  without  any  specialty.    This  draft,  which 


426  WINCH   V.   KEELEY.  fCHAP.    Ill 

amounts  to  an  assignment,  is  deposited  with  the  officer  Swinburn,  and 
therefore  is  attached  immediately  upon  it:  so  that  Swinburn  could 
not  have  paid  this  money  to  Gibson,  supposing  he  had  not  been  bank- 
rupt, without  making  himself  liable  to  the  defendants;  because  he 
would  have  paid  it  with  full  notice  of  this  assignment,  for  valuable 
consideration.^ 


WINCH   V.   KEELEY. 
In  the  King's  Bench,  Hilary  Term,   1787. 

[Reported  in  1   Term  Reports,  619.] 

Indebitatus  assumpsit  for  work  and  labor,  money  paid,  laid  out, 
and  expended,   money  lent,   and  on  an  account  stated. 

Pleas,  1st,  Non  assumpsit.  2d,  That  after  the  day  of  making  the 
promises,  etc.,  the  plaintiff  became  a  bankrupt,  etc.,  and  that  his 
commissioners  assigned  over  his  effects  to  the  assignees,  etc.,  by 
virtue  of  which  he  the  defendant  is  chargeable  to  pay  the  sums  of 
money  mentioned  in  the  declaration  to  the  assignees,  etc.  3d,  Set  off 
for  goods  sold  and  delivered,  money  paid,  laid  out,  and  expended, 
money  lent,  and  for  money  due  on  an  account  stated. 

The  replication  admitted  the  matters  contained  in  the  second  plea 
to  be  true;  and  as  to  all  the  promises  in  the  declaration  mentioned, 
and  all  the  sums  therein  contained,  except  as  to  73/.  12s.  9fZ.  parcel, 
etc.,  the  plaintiff  acknowledged  that  he  would  not  further  prosecute. 
Then  the  replication  proceeded  as  follows;  and  as  to  that  sum,  he 
says  that,  before  the  time  that  the  plaintiff  became  a  bankrupt  in 
manner  and  form  as  the  defendant  hath  in  his  said  plea  alleged,  the 
said  defendant  was  indebted  to  him  the  said  plaintiff  in  the  several 
sums  of  money  in  the  said  declaration  mentioned,  and  that  he  the 
said  plaintiff  was  also  indebted  to  the  said  defendant  in  certain  other 
large  sums  of  money;  and  that  upon  an  account  fairly  and  justly 
taken  between  the  said  plaintiff  and  the  said  defendant  there  was 
then  due  and  owing  from  the  defendant  to  him  the  said  plaintiff,  on 
the  balance  of  such  account,  the  sum  of  73Z.  12s.  2d.  for  and  on  ac- 
count of  the  several  sums  of  money  in  the  third  and  fourth  counts 
of  the  said  declaration  mentioned,  over  and  above  all  sums  of  money 
whatsoever  due  and  owing  from  the  said  plaintiff  to  the  said  defend- 
ant, that  is  to  say,  at  Westminster  aforesaid;  and  the  said  plaintiff 
farther  saith,  that  he  the  said  plaintiff,  before  the  time  that  he  be- 
came and  was  a  bankrupt  in  manner  and  form  as  in  the  said  plea 
mentioned,  to  wit   on   the   20th  of   October,   1785,  at  Westminster 

1  See  also  Squib  v.  Wyn,  1  P.  Wms.  378 ;  Chandos  v.  Talbot,  2  P.  Wms.  601,  607 ; 
Carteret  v.  Paschal,  3  P.  Wms.  197  ;  Tourville  v.  Naish,  3  P.  Wms.  307  ;  Ex  parte  Byas, 
1  Atk.  124;  Brown  v.  Roger  Williams,  1  Atk.  160;  Unwin  t;. Oliver,  1  Burr.  481 ;  Sul- 
livan V.  Visconti  (N.  J.),  53  At.  Rep.  598. 


SECT,  n.]  WINCH  V.    KEELEY.  427 

aforesaid,  in  the  said  county,  became  and  was  justly  indebted  to  one 
Joseph  Searle  in  a  large  sum  of  money,  to  wit,  in  the  sum  of  73/.  12s.  9d. 
And,  being  so  indebted,  he  the  said  plaintiff  afterwards,  to  wit,  on 
the  day  and  year  last  aforesaid,  and  before  he  became  a  bankrupt, 
to  wit,  at  "Westminster  aforesaid,  in  the  county  aforesaid,  by  his 
certain  deed  poll,  sealed  with  the  seal  of  him  the  said  plaintiff,  which 
said  deed  he  the  said  plaintiff  brings  here  into  court,  the  date 
whereof,  etc.,  in  consideration  of  the  said  sum  of  money  so  as 
aforesaid  due  and  owing  from  him  the  said  plaintiff  to  the  said 
Joseph  Searle,  did  bargain,  sell,  assign,  and  transfer  to  the  said 
Joseph  Searle  the  said  sum  of  73/.  12s.  9d.  parcel  of  the  money  in 
the  said  declaration  mentioned;  to  hold  the  same  to  the  said  Joseph 
Searle  from  thenceforth  to  his  own  proper  use,  under  a  certain  pro- 
viso therein  and  hereinafter  mentioned ;  and  did  thereby  constitute 
and  appoint  the  said  Joseph  Searle  his  true  and  lawful  attorney 
irrevocably,  and  did  give  and  grant  unto  him,  his  executors  and 
administrators,  full  power  and  authority  in  his  name,  to  the  only 
proper  use  and  behoof  of  the  said  Joseph,  to  ask,  demand,  and  sue 
for,  the  aforesaid  sum  of  73/.  12s.  9d.  Provided  always,  that  if  he 
the  said  plaintiff,  his  executors  or  administrators,  should  well  and 
truly  pay,  or  cause  to  be  paid,  unto  the  said  Joseph  the  said  sum  of 
73/.  12s.  dd.  so  due  and  owing  to  him  as  aforesaid,  within  two  cal- 
endar months  after  the  date  of  those  presents,  then  the  said  deed 
poll,  and  every  article  and  clause  therein  contained,  should  be  void ; 
as  by  the  said  deed  poll,  relation  being  thereunto  had,  may  more  fully 
appear.  And  the  said  plaintiff  further  saith,  that  he  did  not,  at  any 
time  within  the  space  of  two  calendar  months  after  the  date  of  the 
said  deed,  pay  to  the  said  Joseph  the  said  sum  of  73/.  12s.  9d.  so 
due  and  owing  to  him  as  aforesaid,  but  that  the  same  hath  from 
thence  hitherto  remained  due  and  unpaid  from  the  said  plaintiff  to 
the  said  Joseph;  and  that  the  original  writ  in  this  suit  was  sued  out 
in  the  name  of  him  the  said  plaintiff  for  and  on  the  behalf  of  the 
said  Joseph  Searle,  and  for  the  purpose  of  enabling  the  said  Joseph 
Searle  to  receive  the  said  sum  of  73/.  12s.  9d.  parcel  of  the  said  sums 
in  the  said  declaration  mentioned,  according  to  the  form  and  effect 
of  the  said  deed  poll,  and  not  for  the  benefit,  use,  or  behoof,  of  the 
said  plaintiff,  that  is  to  say,  at  Westminster  aforesaid,  in  the  county 
aforesaid ;  and  this  he  is  ready  to  verify,  wherefore  he  prays  judg- 
ment, etc.,  as  to  the  said  73/.  12s.  dd.  To  this  replication  there  was 
a  general  demurrer  and  joinder. 

Morgan^  in  support  of  the  demurrer,  contended  that  this  debt, 
being  a  chose  in  action,  could  not  be  assigned.  Co.  Litt.  214  a, 
2  Rol.  Abr.  45  F.  6.  Although  the  king  by  his  prerogative  may 
assign  a  chose  in  action,  yet  his  grantee  cannot.  Cro.  Eliz.  180. 
Bills  of  exchange  are  assignable  by  the  law  of  merchants:  but 
promissory  notes  can  only  be  assigned  under  the  3  «fe  4  Ann.  c.  9, 
which  shews  that  at  common  law  they  could  not.     That  being  the 


428  WINCH   V.   KEELEY.  [CHAP.   III. 

law  generally,  that  inconvenience  will  result  from  permitting  pep 
sons  subject  to  the  bankrupt  laws  to  assign  over  their  effects  to 
particular  creditors  on  the  eve  of  a  bankruptcy. 

Laivnmce,  contra,  did  not  dispute  the  general  principle;  and  ad- 
mitted that  if  the  action  had  been  brought  in  the  name  of  Searle, 
those  cases  would  have  applied;  and  that  this  assignment  could  not 
have  been  supported  if  it  had  been  fraudulent.  But  he  observed  that 
the  question  here  was,  whether  a  chose  in  action  can  be  assigned  for 
an  antecedent  debt,  so  that  the  assignee  may  recover  on  it  in  the 
name  of  the  assignor.  The  cases  cited  only  prove  that  the  action 
cannot  be  maintained  by  the  assignee.  It  cannot  now  be  disputed 
that  courts  of  equity  will  protect  a  chose  in  action  when  assigned ; 
and  courts  of  law  have  frequently  permitted  the  assignee  to  sue  in 
the  name  of  the  assignor.  A  court  of  equity  has  held  such  an  as- 
signment to  be  good,  even  though  the  assignor  afterwards  became 
a  bankrupt.  Unwin  v.  Oliver,  cited  by  Lord  Mansfield,  in  1  Burr. 
481 ;  Ex  parte  Byas,  1  Atk.  124.  If  then  such  an  assignment  be  good 
in  a  court  of  equity,  the  only  question  is,  whether  or  not  this  Court 
will  take  notice  of  such  a  trust.  Now  courts  of  law  have  taken 
notice  of  trusts  in  many  instances.  In  the  case  of  Bottomley  v. 
Brooke,  which  was  debt  on  bond,  the  defendant  pleaded  that  the 
bond  was  given  for  securing  100/.' lent  to  the  defendant  by  one  E. 
Chancellor,  and  was  given  by  her  direction  to  the  plaintiff  in  trust 
of  her,  and  that  E.  Chancellor,  before  the  action  brought,  was  in- 
debted to  the  defendant  in  more  money  than  the  amount  of  the  bond : 
to  this  there  was  a  demurrer,  which  was  withdrawn  by  the  advice  of 
the  Court.  So  that  the  Court  there  did  not  look  to  the  person  legally 
entitled,  but  to  her  who  was  beneficially  interested  in  the  bond. 
The  authority  of  this  case  was  afterwards  recognized  in  that  of 
Rudge  V.  Birch  in  this  Court,  where,  to  debt  on  bond  the  defendant 
pleaded,  that  the  bond  was  given  to  the  plaintiff  in  trust  for  A  for 
a  debt  due  from  the  defendant  to  A ;  and  that  A  at  the  time  of  ex- 
hibiting the  plaintiff's  bill  was  indebted  to  the  defendant  in  more 
money.  The  plaintiff  demurred,  and  the  Court,  on  the  authority  of 
the  case  of  Bottomly  v.  Brooke,  held  this  to  be  a  good  plea.  It  has 
likewise  been  since  recognized  in  Webster  v.  Scales,  where  it  was 
held  by  the  Court  that  a  bankrupt's  interest  as  a  trustee  was  not 
assignable  by  the  commissioners.  Immediately  on  his  assignment 
the  plaintiff  became  a  mere  trustee;  if  so,  this  case  falls  within 
the  principle  of  that  of  Webster  v.  Scales.  For  by  the  1  Jac.  1, 
c.  15,  s.  15,  the  commissioners  are  only  empowered  to  assign  those 
things  which  are  for  the  benefit  of  the  bankurpt.  Therefore  this 
debt  could  not  pass  under  the  assignment  from  the  bankrupt's  com- 
missioners to  his  assignees;  because,  when  recovered,  it  cannot  be 
applied  to  the  bankrupt's  benefit. 

3Iorgan  in  reply.  There  is  no  doubt  but  a  chose  in  action  may  be 
assigned  in  equity;  but  the  question  here  is,  whether  it  can  be  so 


SECT.  U.]  WINCH  V.   KEELEY.  429 

assigned  in  a  court  of  law.  In  Bottomley  v.  Brooke,  the  parties  had 
only  done  what  they  lawfully  might;  the  bond  was  originally  given  to 
the  plaintiff  for  the  benefit  of  Mrs.  Chancellor;  and  on  an  account 
between  her  and  the  defendant  she  would  have  been  found  indebted 
to  him:  but  no  question  there  arose  concerning  the  assignment  of 
a  chose  in  action.  In  the  case  of  Rudge  and  Birch  the  plaintiff  was 
a  trustee:  but  here  the  plaintiff  is  not  to  be  considered  in  that  light; 
because  he  was  the  original  debtor,  and  unless  he  could  assign  a  chose 
in  action,  his  interest  in  the  bond  is  now  vested  in  his  assignees. 

AsHHURST,  J.  The  cases  which  have  been  cited  by  the  plaintiff's 
counsel  go  a  great  way  in  determining  this  question.  It  is  true  that 
formerly  the  courts  of  law  did  not  take  notice  of  an  equity  or  a 
trust;  for  trusts  are  within  tlie  original  jurisdiction  of  a  court  of 
equity:  but  of  late  years,  it  has  been  found  productive  of  great  ex- 
pense to  send  the  parties  to  the  other  side  of  the  Hall;  wherever 
this  Court  have  seen  that  the  justice  of  the  case  has  been  clearly  with 
the  plaintiff,  they  have  not  turned  him  round  upon  this  objection. 
Then  if  this  Court  will  take  notice  of  a  trust  why  should  they  not  of 
an  equity  ?  It  is  certainly  true  that  a  chose  in  action  cannot  strictly  be 
assigned:  but  this  Court  will  take  notice  of  a  trust,  and  consider 
who  is  beneficially  interested,  as  in  Bottomley  v.  Brooke,  where  the 
Court  suffered  the  defendant  to  set  off  a  debt  due  from  Mrs.  Chan- 
cellor in  the  same  manner  as  if  the  action  had  been  brought  by  her. 
The  only  difference  between  that  case  and  this  is,  that  there  the 
plaintiff  himself  was  not  originally  interested  in  the  debt,  but  this 
plaintiff  was:  but  that  does  not  make  any  essential  difference;  be- 
cause if  it  be  once  established  that  this  Court  will  take  notice  of 
trusts,  it  is  immaterial  whether  the  person  who  sues  were  originally 
a  trustee  or  afterwards  becomes  so.  Nor  is  it  material  at  what  time 
they  became  a  trustee ;  for  whether  he  became  such  by  the  assign- 
ment, or  was  so  originally,  it  is  sufficient  to  say  that  he  is  a  trustee 
now,  and  as  such  has  a  right  to  maintain  this  action.  If  this  had 
been  a  fraudulent  assignment,  it  would  have  raised  a  different  ques- 
tion: but  on  these  pleadings  it  must  be  taken  to  have  been  assigned 
for  a  valuable  consideration.  The  case  of  Webster  and  Scales  is  in 
point;  and  on  the  authority  of  that  and  on  the  other  cases  cited,  I 
am  of  opinion  that  the  plaintiff  ma}'^  recover. 

BuLLER,  J.  This  action  is  brought  in  the  name  of  the  assignor 
of  this  bond ;  and  therefore  it  does  not  involve  in  it  the  question 
whether  a  chose  in  action  may  be  so  assigned  as  to  give  a  legal  title 
to  the  assignee.  The  plea  only  says,  that  the  plaintiff  is  become  a 
bankrupt,  and  that  this  debt  is  transferred  to  his  assignees;  the  an- 
swer to  that  is,  that  this  is  a  debt  due  in  form  to  the  plaintiff,  but 
in  substance  to  a  third  person ;  and  therefore  it  is  not  such  a  debt 
as  passed  under  the  commission;  if  not,  it  is  still  in  the  plaintiff, 
and  he  is  entitled  to  maintain  this  action.  The  statute  of  the  1  Jac. 
1,  c.  15,  only  says  that  such  debts  are  to  be  assigned  as  are  for  the 


430  CATOR   V.   BURKES.  [CHAP.   III. 

benefit  of  the  bankrupt.  This  construction  was  put  upon  the  statute 
soon  after  it  passed  in  a  case  in  March,  38 ;  where  it  was  held  that 
such  things  as  the  bankrupt  held  as  trustee  did  not  pass  under  the 
commission.  Here  it  must  be  taken  on  these  pleadings  that  this 
debt  did  not  pass  under  the  commission;  therefore  it  remained  in 
the  bankrupt,  and  he  may  maintain  this  action. 

Judgment  for  the  plaintiff . 


CATOR   V.   BURKES   and   Others. 

In  Chancery,   1785. 
[Reported  in  1  Brown's  Chancery  Cases,  434.] 

Defendants  Edmund  and  Richard  Burke  bad  entered  into  a  bond 
of  500^.  to  the  other  defendant  Hargrave,  for  securing  250Z.  dated 
5th  September,  1777  (together  with  other  bonds,  amounting  to 
1050/.),  and  had  taken  from  him  a  counter-bond  for  securing  the  said 
sum  of  1050/.  Afterwards  the  defendant  Hargrave  borrowed  of  the 
plaintiff  Cator  100/.  on  his  own  promissory  note,  and  deposited  de- 
fendant Burke's  bond  with  plaintiff  as  a  security.  The  lOOZ.  not 
being  paid,  the  plaintiff  filed  this  bill  praying  the  defendants  Burkes 
might  pay  to  the  plaintiff  what  should  be  found  due  on  account  of 
the  100/.  and  interest,  out  of  the  money  secured  by  their  bond.  The 
bond  appeared  to  be  given  for  the  purpose  of  satisfying  creditors  of 
William  Burke,  a  relation  of  the  defendants  Burkes,  between  whom 
and  Hargrave  there  was  matter  of  account,  on  which  William  Burke 
was  debtor;  and  that  there  was  also  a  matter  of  account  outstanding 
between  Edmund  Burke  and  the  defendant  Hargrave. 

Mr.  Madocks  and  Mr.  Hollist^  for  the  plaintiff,  argued  (upon  Lord 
Loughborough's  expressing  a  doubt  what  remedy  the  plaintiff  could 
have  in  equity),  that  the  relief  was  by  preventing  the  defendants 
Burkes  from  setting  up  the  counter-bond,  as  a  defence  against  any 
action  which  might  be  brought  against  them  at  law,  in  the  name  of 
Hargrave.  That  the  bond  here,  being  lent  for  the  purpose  of  raising 
money,  and  a  counter-bond  taken,  was  a  fraud,  and  the  holder  of  the 
bond  ought  to  be  protected  against  the  counter-bond  so  taken  being 
used  as  a  defence. 

Mr.  Hollist  cited  the  case  of  Lord  Shelburne  v.  Tierney,  in  the 
Exchequer,  where,  in  the  action  at  law,  Lord  Shelburne  pleaded  the 
counter-bond,  and  the  plaintiff  filed  a  bill  to  restrain  him  from  set- 
ting it  up:   Lord  Shelburne  submitted. 

Lord   Loughborough.     Then  the  Court  did   not   decree  that   hfe 
should  not  set  up  the  counter-bond. 
'     Mr.  Kenyan^  for  defendants  Burkes.     Whoever  takes  a  security, 


SECT,    n.]  DEERING   V.   FAERINGTON.  431 

which,  at  law,  is  unassignable,  must  take  it  subject  to  every  defence 
which  can  be  made  against  it. 

3fr.  Arden,  for  defendant  Hargrave.  The  question  for  your  Lord- 
ships to  decide  is,  whether  the  holder  of  the  bond,  using  it  with  the 
consent  of  the  obligor,  the  obligor  can  contend  at  law,  to  set  off 
against  it,  as  an  unassignable  security.  An  unassignable  security 
at  law,  if  assigned  by  the  consent  of  the  obligor,  will  be  held  in 
equity  to  be  the  same  as  an  assignable  security. 

LoKD  LouGHBORouGn.  Supposc  the  bond  had  been  paid  off,  but 
had  continued  in  Gator's  hands,  the  argument  will  go  to  this,  that 
Burke  could  not  set  off  the  payment,  unless  indorsed  upon  the  bond. 
It  is  turning  an  unassignable  into  an  assignable  security.  It  is  a 
very  different  case  from  a  bond  given  to  be  deposited  with  Cator. 
The  whole  question  is  between  the  co-defendants.  The  bond  can 
never  be  considered  in  any  other  light  than  as  an  unassignable 
security;  to  consider  it  otherwise,  would  bring  all  the  causes  on 
bonds  in  Westminster  Hall  into  this  Court.  The  plaintiff  has  mis- 
taken both  the  law  and  equity;  for  first,  he  has  supposed  that  the 
holder  of  a  bond  might,  where  there  was  no  discovery  to  be  made, 
come  hither,  and  have  a  different  relief  from  what  he  could  have  at 
law;  and  secondly,  that  if  there  was  fraud  in  giving  the  counter-bond, 
it  could  not  be  made  use  of  at  law.  "When  this  bill  is  dismissed 
"ivith  costs,  you  may  bring  your  action  in  the  name  of  Hargrave.  If 
this  bill  would  lie  by  the  simple  act  of  assigning  the  bond,  a  suit  in 
equity  might  be  brought  on  every  bond  that  is  given. 

Ordered  the  bill  to  be  dismissed  with  costs.'^ 


y 


DEERING  V.   FARRINGTON. 
In  the  King's  Bench,  Easter  Term,  1674. 

[Reported  in  1  Modern,  113.] 

An  action  of  covenant,  declaring  upon  a  deed  by  which  the  defend- 
ant assignavit  et  transposuit  all  the  money  that  should  be  allowed  by 
any  order  of  a  foreign  State  to  come  to  him  in  lieu  of  his  share  in  a 
Bhip. 

Tompson  moved,  that  an  action  of  covenant  would  not  lie,  for  it 
was  neither  an  express  nor  an  implied  covenant.      1  Leon,  179. 

Hale,  C.  J.  You  should  rather  have  applied  yourself  to  this,  viz. : 
Whether  it  would  not  be  a  good  covenant  against  the  party?  As  if 
a  man  doth  demise,  that  is  an  implied  covenant;  but  if  there  be  a 
particular  express  covenant,  that  he  shall  quietly  enjoy  against  all 
claiming  under  him,  that  restrains  the  general  implied  covenant;  but 
it  is  a  good  covenant  against  the  party  himself.  If  I  make  a  lease 
for  years  reserving  rent  to  a  stranger,  an  action  of  covenant  will  lie 

1  See  Ames's  Cas.  ou  Trusts  (2d  ed.),  59,  60  n. 


432  HARDING   V.   HARDING.  [CHAP.   HI. 

by  the  party  to  pay  the  rent  to  the  stranger.  Then  it  was  said,  it 
was  an  assignment  for  maintenance. 

Hale,  C.  J.     That  ought  to  have  been  averred. 

Then  it  was  further  said,  That  an  assignment  transferring  when 
it  cannot  transfer,  signifies  nothing.  —  Hale,  C.  J.  But  it  is  a  cove- 
nant, and  then  it  is  all  one  as  if  he  had  covenanted  that  he  should 
have  all  the  money  that  he  should  recover  for  his  loss  in  such  a  ship.  — 
TwisDEN,  J.,  seemed  to  doubt.  — But  judgment.* 


V 


HARDING   V.   HARDING   and   Anothek. 
In  the  Queen's  Bench  Division,  July  13,  15,  1886. 

[Reported  in  17  Queen's  Bench  Division,  442.] 

Appeal  from  the  judgment  of  the  judge  of  the  county  court  of 
Loughborough. 

The  facts  were  as  follows:  — 

The  defendants  were  the  executors  of  James  Harding,  and  one  of 
the  residuary  legatees  under  James  Harding's  will  was  George  Hard- 
ing, the  father  of  the  plaintiff.  George  Harding  lived  in  Australia, 
and  the  defendants,  after  realizing  the  estate,  sent  him  an  account 
headed,  "Estate  of  the  late  James  Harding,  deceased,  in  account 
with  George  Harding,"  in  which,  after  crediting  him  with  his  share 
of  the  estate  and  debiting  him  with  sums  of  money  paid  to  him  on 
account,  a  balance  of  28^.  195.  Bd.  was  shown  to  be  due  to  him  from 
the  estate.  George  Harding  received  the  account,  and  on  the  4th 
of  September,  1884,  wrote  at  the  foot  of  it  words  which,  so  far  as  is 
material  to  the  present  case,  were  as  follows:  '*I  hereby  instruct  the 
trustees  in  power  to  pay  to  my  daughter,  Laura  Harding,  the  balance 
shown  in  the  above  statement,  less  the  ten  pounds  received  by  me  in 
Australia.     George  Harding,  Sydney." 

The  account,  with  this  writing  at  the  foot  of  it,  was  sent  home  by 
George  Harding  to  his  daughter  Laura,  the  plaintiff,  who  kept  it  for 
some  time,  but  in  the  month  of  October,  1885,  communicated  it  to 
the  defendants.  At  that  time  George  Harding  could  not  be,  nor  has 
he  since  been,  heard  of,  and  the  defendants  wrote  two  letters  to  the 
plaintiff's  solicitors,  the  effect  of  which  was  that  they  would  comply 
with  the  direction  as  to  the  payment  of  the  money  if  they  were  satis- 
fied that  the  plaintiff  could  give  them  a  proper  receipt.     Eventually, 

1  In  a  report  of  the  same  case  in  3  Keb.  304,  Lord  Hale  is  reported  as  saying: 
"Though  assign,  set  over  and  transpose,  do  not  amount  to  covenant  against  an  eign 
title,  yet  against  the  covenantor  himself  it  will  amount  to  a  covenant,  as  a  covenant 
against  all  claiming  by  and  under  me  .  .  .  and  this  is  no  maintenance  unless  it  be 
specially  awarded  to  be  so  within  the  statute,  for  it  doth  not  transfer  the  duty,  but  is  a 
contract  to  transfer  the  benefit,  as  covenant  to  tranafer." 


SECT,    n.]  HARDING   V.    HARDING.  433 

however,    they  declined   to   pay  her   the   money,    and   the   plaintiff 
brought  an  action  in  the  county  court  for  the  amount  and  recovered 
judgment.     The  defendants  appealed. 
Sills,  for  the  defendants. 
Toller,  for  the  plaintiff. 

Wills,  J.     I  am  of  opinion  that  the  decision  of  the  county  court 
judge  was  right.     It  was  argued   for  the  defendants  that   this  was 
a  mere  equitable  assignment,  and  that  haying  been  made  in  fa\'or  of 
a  volunteer  without  consideration,  equity  would  not  enforce  it.     But 
I  think  that  a  misapprehension  of  tie  rules  of  Courts  of  Equity  is 
involved  in  that  proposition.     The  rule  in  equity  comes  to  thi^  that 
so  long  as  a  transaction  rests  in  expression  of  intention  only,  and 
soraething^remains  to  be  done  by  the  donor  to  give  complete  effect  to 
h is  intentiquj_ it  remains^ u ncompleted ,  ^nd  a  Court  of  Equity  will 
not  pnfnrpp.  what  thp  do""''  l3_UJiiiex  0.0  obligation  to  fulfil.    But  when 
the  transaction  is  completed,   and  the  donor  has  created  a  trust  in 
favor  of  the  object  of  his  bounty,  equity  will  interfere  to  enforce  it. 
The  reason  why  equity  will  not  interfere  in  favor  of  a  mere  volunteer, 
but  requires  a  valuable  consideration  for  the  transaction,  is  that  in 
such  a  case  there  is  nothing  wrong  in  the  donor  changing  his  mind 
and  withholding  from  the  object  of  his  liberality  the  contemplated 
benefit.     But  if  there  is  value  given  on  the  one  side  in  exchange  for 
the  donor's  intention,  then  there  is  a  contract,  or  something  approach- 
ing to  a  contract,  between  the  parties,  and  the  donor  cannot  withdraw 
from  his  expressed  intention.     We  were  much  pressed  with  the  au- 
thority of  Holroyd  v.  Marshall,  10  H.  L.  C.  191,  33  L.  J.  (Ch.)  193, 
but  we  think  that  the  doctrine  there  laid  down  does  not  apply  to  a 
case  like  the  present.     In  that  case  the  goods  which  were  the  subject 
of  the  transaction  were  things  capable  of  being  conveyed  by  a  legal 
title,  things  as  to  which  the  grantor  was  competent  to  do  something 
further  to  complete  the  legal  title  of  the  grantee;  and  it  was  held 
that  he  was  bound  to  do  so,  as  he  had  had  consideration.     When, 
however,  the  subject-matter  of  the  transaction  is  an  equitable  right 
or  estate,  and  a  legal  title  cannot  be  given;  then  if  the  settlor  has 
done  all  in  his  power  and  nothing  remains  to  be  done  by  him,  equity 
regards  it  as  though  he  had  completed  the  legal  title,  and  gives  effect 
to  his  intention. 

In  the  present  case  it  was  proposed  to  assign  a  sum  of  money  due 
from  the  trustees,  the  defendants;  and  probably  before  the  Judicature 
Act  it  would  have  been  impossible  to  give  a  legal  title  to  Laura  Hard- 
ing, so  as  to  enable  her  to  sue  in  her  own  name  in  respect  of  this 
right  of  action;  she  could  have  maintained  a  suit  in  equity,  but  the 
legal  title  could  not  have  been  completed  in  her.  Now  it  can  be 
done;  and  it  seems  to  me  that  the  legal  title  has  been  so  completed 
by  the  notice  signed  by  George  Harding  and  sent  by  him  to  the 
plaintiff.  If  it  is  to  be  regarded  as  an  equitable  assignment,  he  has 
done  all  that  he  could  to  make  it  complete;  if,  as  a  legal  assignment, 
VOL.  I.  — 28 


434  HARDING    V.    HARDING.  [CHAP.    ITI. 

he  has  completed  it;  and  under  s.  25,  sub-s.  6  of  the  Judicature  Act, 
1873,  the  aasjo-noo  r.f  o  nh,^^^  \^  nr.t|r.n  moy  suc  lu  hJs  owH  name,  the 
law  as  to  the  necessity  for  a  consideration  not  applying,  as  it  seems 
to  me,  if  the  assignment  is  completely  made.  If  the  assignment  had 
been  made  by  deed,  the  question  of  consideration  could  not  arise; 
and  in  my  opinion  the  question  of  want  of  consideration  has  no 
application  to  such  a  case  as  the  present.  But  there  is  a  further 
fact  in  the  present  case;  George  Harding  authorized  his  daughter 
to  communicate  his  letter  to  the  trustees;  she  did  so,  and  the  trus- 
tees assented  to  the  assignment.  It  seems  to  me  that  that  fact 
carries  us  a  step  further,  and  imports  into  the  case  another  doc- 
trine of  equity;  that  under  such  circumstances  the  assignee  is 
regarded  as  the  cestui  que  trust  of  the  debtor,  if  the  debtor  has 
assented  to  the  obligation.  The  coi-respondence  shows  that  the 
trustees  assented  to  take  the  plaintiff  as  their  cestui  que  trust,  and 
the  facts  ought  to  have  satisfied  them  that  she  had  the  power  to  give 
them  a  proper  receipt.  The  authority  given  by  George  Harding  to 
receive  the  money  was  unrevoked,  and  the  plaintiff  was  competent 
to  give  an  effectual  discharge.  I  think  that  even  without  the  assent 
of  the  trustees  there  was  a  good  and  valid  assignment  to  the  plaintiff; 
but  with  such  assent  arises  the  second  doctrine  that  I  have  referred 
to,  which  settles  any  possible  question  as  to  her  right  to  maintain 
this  action. 

It  is  further  objected  that  the  action  cannot  be  maintained  against 
the  defendants  personally,  but  should  have  been  brought  against  them 
as  executors;  that  objection  I  think  untenable.  The  defendants  had 
stated  an  account  acknowledging  the  debt,  and  there  is  ample  au- 
thority for  saying  that  they  can  be  sued  in  their  personal  capacity. 

Apj^eal  dismissed.^ 

^  Grantham,  J.,  delivered  a  concurring  opinion.  "Walker  v.  Bradford  Bank,  12 
Q.  B.  D.  511  ;  Moore  v.  Waddle,  34  Cal.  145  ;  Welch  v.  Mayer,  4  Col.  App.  440;  Mor- 
rison V.  Ross,  113  Ind.  186  ;  Pugh  v.  Miller,  126  Ind.  189  ;  Wardner  v.  Jack,  82  la.  435  ; 
Jones  V.  Moore,  102  Ky.  591  ;  Norris  v.  Hall,  18  Me.  332  ;  Briscoe  v.  Eckley,  35  Mich. 
112  ;  Coe  V.  Hinckley,  109  Mich.  608;  Wolff  v.  Matthews,  39  Mo.  App.  376  ;  Clark  v. 
Downing,  1  E.  D.  Smith,  406  ;  Beach  v.  Raymond,  2  E.  D.  Smith,  496  ;  Mills  v.  Fox,  4  E. 
D.  Smith,  220 ;  Burtnett  r.  Gwynne,  2  Abb.  Pr.  79  ;  Moore  v.  Robertson,  25  Abb.  N.  C. 
173  ;  Richardson  v.  Mead,  27  Barb.  178  ;  Merrick  i'.  Brainard,  38  Barb.  574;  Allen  v. 
Brown,  51  Barb.  86,  affd.  44  N.  Y.  228 ;  Dawson  v.  Pogue,  18  Oreg.  94  ;  Gregoire  v. 
Rourke,  28  Oreg.  275;  Buxton  v.  Barrett,  14  R.  I.  40,  ace.  See  also  Caulfield  v.  San- 
ders, 17  Cal.  569  ;  Young  v.  Hudson,  99  Mo.  102  ;  Stone  v.  Frost,  61  N.  Y.  614.  But 
see  contra,  note,  Brownlow,  40  ;  Patterson  v.  Williams,  LI.  &  G.  t.  PI.  95.  See  also 
Jackson  v.  Sessions,  109  Mich.  216. 


FECT.    II.]  COOK   V.    LUM.  435 

ELLEN   G.    COOK  v.   CHARLES   M.   LUM,  Administratoe. 
New  Jersey  Supreme  Court,  June  Term,  1893. 

[Reported  in  55  New  Jersey  Law,  373.] 

Beasley,  C.  J.  This  case  stands  before  the  court  on  a  special  ver- 
dict, and  the  problem  to  be  solved  involves  the  legal  efficacy  of  a  gift 
of  money. 

The  circumtances  were  these :  The  deceased,  Ellen  G.  Green,  who  is 
here  represented  by  her  administrator,  who  is  the  defendant  on  this 
record,  deposited  with  one  Kase  the  sum  of  $2,316,  who  thereupon 
gave  to  the  said  Ellen  a  paper  containing  in  column  eight  several  sums 
in  figures,  which  were  footed  up  and  amounted  to  the  sum  just  specified. 
The  paper  was  dated  "  July  26th,  1890,"  and  there  was  no  other  writ- 
ing upon  it. 

After  finding  the  foregoing  facts,  the  special  verdict  proceeds  as  fol- 
lows:  "  And  the  jurors  aforesaid  further  say  that  except  said  paper, 
said  John  H.  Kase  never  gave  to  said  Ellen  Green  any  evidence  of  in- 
debtedness from  himself  to  her  for  said  deposit.  .  .  .  That  said  Ellen 
Green  did  actually  deliver  said  paper  into  the  hands  of  said  Ellen  G. 
Cook  shortly  before  her,  said  Ellen  Green's,  death.  That  said  Ellen 
Green  delivered  said  paper  into  the  hands  of  said  Ellen  G.  Cook,  with 
the  intention  of  thereby  giving  to  said  Ellen  G.  Cook,  for  herself,  the 
mone}'  in  the  hands  of  said  John  H.  Kase."  It  was  further  found  that 
Kase  was  not  informed  of  the  gift  until  several  weeks  after  the  death 
of  the  donor. 

The  general  legal  principle  regulating  the  subject  of  gifts  of  choses 
in  action  has  long  been  established.  It  is  to  the  effect  that  with  re- 
spect to  things  both  tangible  and  intangible,  mere  words  of  donation 
will  not  suffice.  With  regard  to  the  former  class  —  that  is,  things  cor- 
poreal —  there  must  be,  in  addition  to  the  expression  of  a  donative 
purpose,  an  actual  tradition  of  the  corpus  of  the  gift  whenever,  con- 
sidering the  nature  of  the  property  and  the  circumstances  of  the  actors, 
such  a  formalit}'  is  reasonably  practicable.  In  some  instances,  when 
the  situation  is  incompatible  with  the  performance  of  such  ceremon}-, 
resort  may  be  had  to  what  has  been  called  a  symbolical  delivery  of  the 
subject. 

Touching  things  in  action,  as  there  can  be  no  actual  delivery  of  them, 
the  legal  requirement  is,  that  the  donor's  voucher  of  right  or  title  must 
be  surrendered  to  the  donee.  Such  surrender  is  deemed  equivalent  to 
an  actual  handing  over  of  things  corporeal. 

To  this  extent  the  law  of  the  subject  is  neither  doubtful  nor  obscure. 
The  difficulty  supervenes  as  soon  as  the  attempt  is  made  to  apply  these 
rules  to  the  ever-variant  conditions  of  the  cases  that  are  being  pre- 
sented for  judicial  examination.     Even  when  the  thing  given  has  beea 


436  COOK  V.  LUM.  [chap.  ni. 

a  personal  chattel,  whether  certain  acts  show  a  purpose  to  give  con- 
summated by  a  delivery  of  it,  has  often  been,  and  doubtless  will  be,  a 
vexed  question.  The  uncertaintj-  in  construing  the  circumstances  is 
even  greater  than  we  have  rights  of  action  to  deal  with.  There  are  a 
multitude  of  decisions  which  demonstrate  the  embarrassment  inherent 
in  this  class  of  cases  ;  but  as  these  decisions,  while  all  acknowledging 
the  rules  just  indicated,  are  in  truth  nothing  more  than  interpretations, 
respective!}',  of  the  facts  of  the  particular  case,  and  as  such  facts  are 
unlike  the  juncture  now  present,  it  would  serve  no  useful  purpose  to 
review  or  cite  them  in  detail.  There  is  no  observed  precedent,  so  far 
as  circumstances  are  concerned,  for  the  matter  now  before  us.  Man^- 
of  these  decisions  may  be  found  in  the  Encyclopedia  of  English  and 
American  Law,  tit.  "Gifts,"  and  any  person  who  will  examine  this 
long  train  of  cases  will  at  once  perceive  that  the  principal  difficulty  has 
been  to  decide  whether  the  evidence  in  hand  in  the  given  case  showed 
a  deliver}'  of  the  subject  of  the  gift  in  a  legal  point  of  view. 

But  this  was  a  maze  not  without  its  clue,  for  the  cardinal  principle 
as  to  what  constituted  a  delivery  that  would  legalize  a  gift  was  on  all 
sides  admitted  and  was  generally  applied.  The  test  was  this,  that  the 
transfer  was  such  that,  in  conjunction  with  the  donative  intention,  it 
completeh'  stripped  the  donor  of  his  dominion  of  the  thing  given, 
whether  that  thing  was  a  tangible  chattel  or  a  chose  in  action.  The 
rule  does  not  require  that  the  title  of  the  donee  should  be  formall}-  per- 
fect, although  in  the  earliest  decisions  this  appears  to  have  been  indis- 
pensable, but  now  the  law  is  otherwise  settled.  Thus,  the  delivery, 
with  donative  intention,  of  non-negotiable  notes  or  bonds  affords  an 
apt  illustration  of  the  rule  in  both  of  its  aspects.  Such  gifts  are  admit- 
tedly valid,  although  the  title  of  the  donee  is  not  ceremoniousl}'  perfect, 
as  it  wants  the  finishing  touch  of  a  written  assignment ;  but  the  trans- 
action is  validated  on  tlie  ground  that  it  is  possessed  of  the  all-important 
quality  of  depriving  the  donor  of  all  control  over  the  propert}'.  After 
the  delivery  of  such  bond  or  note,  the  donor  can  exercise  not  a  single 
act  of  ownership  with  respect  to  it;  he  cannot  sue  upon  it  nor  collect 
it,  nor  regain  its  possession.  And  it  is  this  absolute  abnegation  of 
power  that,  in  a  legal  point  of  view,  makes  the  transaction  enforceable. 

This  is  the  crucial  test,  and  if  it  be  applied  to  the  case  in  hand  this 
donation  is  not  to  be  sustained.  The  reason  is  that  the  donor  parted 
with  nothing  that  was  essential  to  his  own  dominion  over  the  mone3's 
in  question.  After  she  had  transferred  the  slip  of  paper  in  question 
her  dominion  over  her  deposits  remained  plainl}'  intact.  The  paper 
was  in  no  sense  a  voucher  of  the  receipt  of  the  moneys ;  they  could 
liave  been  collected  without  its  production  ;  nor  was  it  necessary  to  a 
suit  for  their  recover}".  It  is  impossible  to  believe  that  the  parties  in- 
tended this  slip  of  paper,  which  contained  nothing  but  a  line  of  figures 
and  an  addition  of  them,  as  a  testimonial  showing  the  transaction  to 
which  it  immediately  appertained.  It  does  not  appear  how  the  donor 
became  possessed  of  this  paper,  but  construed  intrinsically  it  has  the 


SECT.    II.]  HERBERT   V.   BRONSON.  437 

appearance  of  having  been  used  for  the  temporary  purpose  of  showing 
the  aggregate  of  the  several  sums  on  deposit,  and  it  carries  on  its  face 
no  indication  whatever  that  it  was  drawn  or  given  as  a  voucher  of  the 
indebtedness  of  the  person  making  it.  The  deliver}-  of  so  insignificant 
a  paper  as  this  cannot,  in  our  opinion,  operate  to  legalize  the  transac- 
tion in  question. 

The  defendant  is  entitled  to  judgment} 


EDWARD   HERBERT   v.    GEORGE   W.   BRONSON    &   Trustee. 
Sdpreme  Judicial  Court  of  Massachusetts,  October  25,  1878. 

[Reported  in  125  Massachusetts,  475.] 

Trustee  process.  Writ  dated  December  31,  1877,  and  served  on 
Januar}'  1,  1878.  The  cit}'  of  Fall  River,  summoned  as  trustee,  an- 
swered that  at  the  date  of  service  upon  it,  it  had  in  its  hands  belonging 
to  the  defendant  the  sum  of  $248.  James  Murphy,  Jr.,  appeared  as 
claimant  of  the  funds  in  the  hands  of  the  trustee  by  virtue  of  an  assign- 
ment, dated  April  9,  1877,  to  him  from  the  defendant,  of  "  all  claims 
and  demands  I  now  have,  and  all  which,  at  any  time  between  the  date 
hereof  and  the  ninth  day  of  April  next,  I  may  and  shall  have  against 
the  city  of  Fall  River,  for  all  sums  of  money  due  and  for  all  sums  of 
money  and  demand  which,  at  any  time  between  the  date  hereof  and  the 
said  ninth  da}'  of  April  next,  may  and  shall  become  due  to  me,  for  ser- 
vices as  school  teacher." 

At  the  trial  in  the  Superior  Court,  before  Gardner,  J.,  without  a 
jury,  it  appeared  that,  at  the  date  of  the  assignment,  the  defendant 
was  employed  as  a  school  teacher  b}'  the  cit}',  under  a  contract,  from 
September,  1876,  to  June  30,  1877;  that  on  September  1,  1877,  the 
defendant  was  hired  b}'  a  new  contract  from  that  date  until  June  30, 
1878;  and  that  nothing  was  due  the  defendant  on  September  1,  1877, 
upon  his  prior  contract,  but  that  he  had  then  been  paid  in  full.  It  was 
admitted  by  the  plaintiff  that  the  assignment  was  founded  on  a  valid 
consideration  ;  that  it  was  duly  recorded  ;  and  that  there  was  due  the 
assignee  from  the  defendant  a  larger  sum  than  was  in  the  hands  of  the 
trustee.    The  claimant  contended  that  he  was  entitled  to  all  sums  earn2d 

1  Compare  Sewell  v.  Moxsy,  2  Sim.  n.  s.  189  ;  Airey  v.  Hall,  .3  Sm.  &  G.  315  ;  Walker 
V.  Bradford  Bank,  12  Q.  B.  D.  511  ;  Re  Richardson,  30  Ch.  1).  396  ;  Jat-kson  v.  Ses- 
sions, 109  Mich.  216  ;  Murphy  v.  Bordwell,  83  Minn.  54  ;  Smither  v.  Snrther,  30  Hun, 
632 ;  De  faumont  v.  Boc^ert,  36  Hun,  382  ;  Matson  v.  Abbey.  70  Hun,  475,  141  N.  Y. 
179  ;  Re  Hug.^ins'  Est.  (Pa.),  53  At.  Rep.  746  Read  v.  Long,  4  Yerg.  68 ;  Cowen  v. 
First  Nat.  Bank,  94  Tex.  547. 

As  to  gifts  of  choses  in  action,  having  tangible  form  as  bonds,  policies  of  insurance. 
Ravings  Bank  books,  lottery  tickets,  etc.,  see  Ames's  Cas.  on  Trusts  (2d  ed  ),  107-163. 
14  Am.  &  Eng.  Eucyc.  of  Law  (2d  ed.),  1029. 


438  WELCH    V.   MANDEVILLE.  [CHAP.    ni. 

by  the  defendant  while  in  the  employ  of  the  city,  during  the  3'ear  cov- 
ered by  the  assignment. 

The  judge  found  as  a  fact,  that  the  contract,  under  which  the  de- 
fendant was  employed  when  the  assignment  was  made,  terminated  on 
June  30,  1877,  and  that  a  new  contract  was  entered  into  between  the 
defendant  and  the  trustee  on  September  1,  1877  ;  ruled  that  the  assign- 
ment did  not  cover  funds  earned  since  September  1,  1877,  as  against 
the  trustee  process  ;  and  ordered  the  trustee  to  be  charged.  The  claim- 
ant alleged  exceptions. 

JT.  A.  Dubuque,  for  the  claimant. 

M.  K.  Braley^  for  the  plaintiff,  was  not  called  upon. 

By  the  Court.  It  is  well  settled  that  money  to  be  earned  hereafter 
under  a  new  engagement  is  not  assignable.  Mulhall  v.  Quinn,  1  Gra}', 
105  ;  Hartley  v.  Tapley,  2  Gray,  565  ;  Twiss  v.  Cheever,  2  Allen,  40. 

Exceptions  overruled} 


WELCH   V.   MANDEVILLE. 

Supreme  Court  of  the  United  States,  February  Term,  1816. 

[Reported  in  1  Wheaton,  233.] 

Error  to  the  circuit  court  for  the  district  of  Columbia  for  Alexandria 
County.  This  was  an  action  of  covenant  brought  in  the  name  of  Welch 
(for  the  use  of  Prior)  against  Mandeville  and  Jamieson.  The  suit 
abated  as  to  Jamieson  by  a  return  of  no  inhabitant.  The  defendant, 
Mandeville,  filed  two  pleas.  The  second  plea,  upon  which  the  question 
in  this  court  arises,  states,  that,  on  the  5th  of  July,  1806,  James  Welch 
impleaded  Mandeville  and  Jamieson,  in  the  circuit  court  of  the  district 
of  Columbia,  for  the  county  of  Alexandria,  in  an  action  of  covenant,  in 

1  Lightbody  v.  Smith,  125  Mass.  51  ;  Eagan  v.  Luby,  133  Mass.  .'J43  ;  Lehigh  R.  R. 
Co.  V.  Woodring,  116  Pa,  .513,  ace;  Edwards  v.  Peterson,  80  Me.  367,  contra.  See 
also  Kendall  v.  United  States,  7  Wall   113  ;  Metcalf  v.  Kincaid,  87  la.  443. 

"  It  makes  no  difference,  if  instead  of  (an  assignment  of)  a  debt  now  due,  it  is  of 
money  expected  to  become  due  at  some  future  time  to  the  assignor,  it  appearing  that 
there  was  an  existing  contract  upon  which  the  debt  might  arise."  Cutts  v,  Perkins,  12 
Mass.  212.  See  also  in  accord,  Harrop  v.  Landers  Co.,  45  Conn.  561  ;  Walton  v.  Horkau, 
1 1 2  Ga.  814 ;  Metcalf  i>.  Kincaid,  87  La.  443  ;  Farrar  v.  Smith,  64  Me.  74  ;  Emerson  v.  Rail- 
road, 67  Me.  387  ;  Knevals  v.  Blauvelt,  82  Me.  458;  Shaffer  v.  Union  Minintx  Co.,  55 
•Md.  74 ;  Crocker  v.  Whitney,  10  Mass  316  ;  Gardner  v.  Hoeg,  18  Pick.  168 ;  Lanuan  v. 
Smith,  7  Gray,  150  ;  Kane  v.  Clough,  36  Mich.  436  ;  Garland  v.  Harrington,  51  N.  H. 
409 ;  Runnells  v.  Bosquet,  60  N.  H.  38  ;  Tiernay  v.  McGarity,  14  R.  I.  231  ;  Kennedy 
V.  Tiernay,  14  R.  I.  528  ;  Chase  r.  Dnby,  20  R.  I.  463  ;  Dolan  v.  Hughes,  20  R.  I.  513 , 
Carter  i-.  Nichols,  58  Vt.  553  ;  State  Bank  v.  Hastings,  15  Wis.  75.  As  to  the  validity 
of  assignments  of  claims  against  the  United  States,  see  Kendall  v.  United  States, 
7  Wall.  113  ;  Ball  v.  Halsell,  163  U.  S.  72  ;  Price  v.  Forrest,  173  U.  S.  410 ;  and  of 
claims  against  municipal  corporations,  see  Delaware  County  v.  Diebold  Co.,  133  U.  S. 
473,  and  cases  cited. 


SECT.    II.]  WELCH   V.    MANDEVILLE.  439 

which  suit  such  proceedings  were  had,  that,  afterwards,  to  wit,  at  a 
session  of  the  circuit  court,  on  the  Slst  day  of  December,  1807,  ".Jthe. 
said  James  Welch  came  into  court  and  acknowledged  that  he  would 
not  farther  prosecute  his  said  suit,  and  from  thence  altogether  with- 
"draw  himself.^'  llie  plea  then  avers,  tliat  the  said  James  Welcb,  in 
the  plea  mentioned,  is  the  same  person  in  whose  name  the  present  suit 
is  brought,  and  that  tlie  said  Mandeville  and  Jamieson,  in  the  former 
suit,  are  the  same  persons  who  are  defendants  in  this  suit,  and  that  the 
cause  of  action  is  the  same  in  both  suits.  To  this  plea  the  plaintiff 
filed  a  special  replication,  protesting  that  the  said  James  Welch  did  not 
come  into  court  and  acknowledge  that  he  would  not  farther  prosecute 
the  said  suit  and  from  thence  altogether  withdraw  himself ;  and  avers 
that  James  Welch,  being  indebted  to  Prior,  in  more  than  8,707  dollars 
and  9  cents,  and  Mandeville  and  Jamieson  being  indebted,  by  virtue  of 
the  covenant  in  the  declaration  mentioned,  in  8,707  dollars  and  9  cents, 
to  Welch,  he,  Welch,  on  the  7th  of  Seijtember,  4799,  by  an  equitable 
assignment,  assigned  to  Prior,  for  a  full  and  valuable  consideration,  the 
said  8,707  dollars  and  9  cents,  in  discharge  of  the  said  debt,  of  which 
assignment  the  replication  avers  Mandeville  and  Jamieson  had  notice. 
The  replication  farther  avers,  that  the  suit  in  the  plea  mentioned  was 
brought  in  the  name  of  Welch,  as  the  nominal  plaintiff  for  the  use  of 
Prior,  and  that  the  defendant,  Mandeville,  knew  that  the  said  suit  was 
brought,  and  was  depending  for  the  use  and  benefit  of  the  said  Prior; 
and  that  the  said  suit  in  the  plea  mentioned,  without  the  authoritv, 
consent,  or  knowledge  of  the  said  Prior,  or  of  the  attorne}-  prosecuting 
the  said  suit,  and  without  any  previous  application  to  the  court,  was 
"dismissed,  agreed."  The  replication  farther  avers,  that  the  said 
James  Welch  was  not  authorized  by  the  said  Prior  to  agree  or  dismiss 
the  said  suit  in  the  plea  mentioned  ;  and  that  the  said  Joseph  Mande- 
ville, with  whom  the  supposed  agreement  for  the  dismissal  of  the  said 
suit  was  made,  knew,  at  the  time  of  making  the  said  supposed  agree- 
ment, that  the  said  James  Welch  had  no  authority  from  Prior  to  agree 
or  dismiss  said  suit.  The  replication  farther  avers,  that  the  said  agree- 
ment and  dismissal  of  the  said  suit  were  made  and  procured  by  the  said 
Joseph  Mandeville,  with  the  intent  to  injure  and  defraud  tlie  said  Prior, 
and  deprive  him  of  the  benefit  of  the  said  suit  in  the  plea  mentioned. 
The  replication  also  avers,  that  the  said  Prior  did  not  know  that  the 
said  suit  was  dismissed  until  after  the  adjournment  of  the  court  at 
which  it  was  dismissed  ;  and,  farther,  that  the  supposed  entry  upon  the 
record  of  the  court  in  said  suit,  that  the  plaintiff  voluntarily  came  into 
court  and  acknowledged  that  he  would  not  farther  prosecute  his  said 
suit,  and  from  thence  altogether  withdraw  himself,  and  the  judgment 
thereupon  was  made  and  entered  by  covin,  collusion,  and  fraud;  and 
that  the  said  judgment  was,  and  is,  fraudulent.  To  this  replication  the 
defendant  filed  a  general  demurrer,  and  the  replication  was  overruled. 
It  appeared  by  the  record  of  the  suit  referred  to  in  the  plea,  that  the 
entry  is  made  in  these  words :  "  This  suit  is  dismissed,  a[/reed,"  and 


440  WELCH    V.    MANDEVILLB.  [CHAP,    HI. 

that  this  entry  was  made  b}-  the  clerk  without  the  order  of  the  court, 
and  that  there  is  no  judgment  of  dismissal  rendered  by  the  court,  but 
onl}'  a  judgment  refusing  to  reinstate  the  cause. 

The  cause  was  argued  b}'  JOee,  for  the  plaintiff,  and  Swann,  for  the 
defendant. 

Story,  J.,  delivered  the  opinion  of  the  court. 

The  question  upon  these  pleadings  comes  to  this,  whether  a  nominal 
plaintiff,-Suing  for  the  benefit  of  his  assignee,  can,  b}-  a  dismissal  of 
jthe  suit  under  a  collusive  agreement  with  the  defendant,  create  a  valid 
bar  against  any  subsequent  suit  for  the  same  cause  of  action. 

Courts  of  law,  following  in  this  respect  the  rules  of  equity,  now  take 
notice  of  assignments  of  choses  in  action,  and  exert  themselves  to  afford 
them  every  support  and  protection  not  inconsistent  with  the  established 
principles  and  modes  of  proceeding  whicli. govern  tribunals  acting 
according  to  the  course  of  the  common  law.  The}^  will  not,  therefore, 
give  effect  to  a  release  procured  b}'  the  defendant  under  a  covenous 
combination  with  the  assignor  in  fraud  of  his  assignee,  nor  permit  the 
assignor  injuriously  to  interfere  with  the  conduct  of  any  suit  commenced 
by  his  assignee  to  enforce  the  rights  which  passed  under  the  assign- 
ment. The  dismissal  of  the  former  suit,  stated  in  the  pleadings  in  the 
present  case,  was  certainly  not  a  retraxit;  and  if  it  had  been,  it  would 
not  have  availed  the  parties,  since  it  was  procured  by  fraud.  Admitting 
a^ismi^al  of  a  suit,  by  agreement,  to  b^  a  good  bar  to  a  subsequent 
_suit,  (on  whicii  we  give  no  opinion,)  it  can  be  so  only  when  it  isJona 
^c?(3,  and  not  for  the  purpose  of  defeating  the  rights  of  third  persons. 
It  would  be  strange  indeed,  if  parties  could  be  allowed,  under  the  pro- 
tection of  its  forms,  to  defeat  the  whole  objects  and  purposes  of  the  law 
itself. 

It  is  the  unanimous  opinion  of  the  court,  that  the  judgment  of  the 
circuit  court,  overruling  the  replication  to  the  second  plea  of  the 
defendant,  is  erroneous,  and  the  same  is  reversed,  and  the  cause  re- 
manded for  farther  proceedings.  Judgment  affirmed} 

1  Mandeville  v.  Welch,  5  Wheat.  277,  283  ;  Fassett  v.  Mulock,  5  Col.  466  ;  Chap- 
man V.  Shattuck,  8  111.  49,  52 ;  Marr  v.  Hanna,  7  J.  J.  Marsh,  642  ;  Hackett  v.  Martin, 
8  Me.  77  ;  Matthews  v.  Houghton,  10  Me.  420  ;  Eastman  v.  Wright,  6  Pick.  316  ;  Cut- 
ler I'.  Haven,  8  Pick.  490 ;  St.  Johns  v.  Cliarles,  105  Mass.  262  ;  Anderson  v.  Miller,  15 
Mi.ss.  586  ;  Lipp  v.  South  Omaha  Co.,  24  Neb.  692  ;  Dancklee  v.  Greenfield  Co.,  23 
N.  H.  245  ;  Sloan  v.  Sommers,  2  Green  (N.  J.),  509;  Gaullagher  v.  Caldwell,  22  Pa. 
300,  .302  ;  Strong  v.  Strong,  2  Aikens,  373.  See  also  Brown  v.  Hartford  Ins.  Co.,  4  Fed. 
Cas.  379;  Wagner  v.  National  Ins.  Co.,  90  Fed.  Rep.  395  ;  Chii;olm  v.  Newton,  1  Ala. 
371  ;  Cunningham  v.  Carpenter,  10  Ala.  109,  112  ;  Reed  v.  Nevins,  38  Me.  193  ;  Rock- 
wood  V.  Brown,  1  Gray,  261. 

Defences  acquired  by  the  debtor  against  assignor  before  notice  of  the  assignment 
are  valid.  McCarthy  v.  Mt.  Tecarte  Co.,  110  Cal.  687;  Parmly  v.  Buckley,  103  111. 
115  ;  Barker  ;'.  Barth,  192  111.  460 ;  Brown  v.  Leavitt,  26  Me.  251 ;  Weiuwick  v.  Ben- 
der, 33  Mo.  80;  Marsh  v.  Garney,  69  N.  H.  236  ;  Bury  v.  Hartman,  4  Serg.  &  R.,  177 ; 
Frantz  <\  Brown,  17  Serg.  &  R.  287  ;  Pellman  v.  Hart,  1  Pa.  St.  263,  266  ;  Gaullagher 
V.  Caldwell,  22  Pa.  300;  Commonwealth  v.  Sides,  176  Pa.  616;  Stebbins  v.  Bruce,  80 
Va.  389 ;  Stebbins  v.  Union  Pac.  R.  R.  Co.,  2  Wyo.  71. 

Defences  acquired  by  the  debtor  against  the  assignor  after  notice  of  assignment  are 


SECT.    II.]  EMLEY   V.   PEERCTE.  441 

EUGENE  EMLEY  v.   JAMES   H.   PERRINE. 
New  Jersey  Supreme  Court,  February  Term,  1896. 

[Reported  in  58  New  Jersey  Law,  472.] 

On  rule  to  show  cause,  &c. 

This  action  is  ia  contract,  and  the  declaration  contains  only  the 
common  counts  in  assumpsit.  The  bill  of  particulars  declares  that 
the  declaration  is  founded  upon  the  following  instrument,  viz. : 

"March  28,  1888. 
"  Messbs.  Nightengale  Bros.  : 

^  ^'^"^^ '^  "I.  o.  u. 

"  ($250)  two  hundred  aud  fifty  dollars  for  value  received. 

"J.  H.  Perrine," 

assigned  b\'  delivery  to  plaintiff. 

One  of  the  pleas  was  the  general  issue. 

The  verdict  being  for  the  plaintiff,  the  defendant  obtained  this  rule 
to  show  cause  why  a  new  trial  should  not  be  granted. 

Argued  at  November  Term,  1895,  before  Beasley,  Chief  Justice, 
and  Justices  JNIagie  and  Ludlow. 

For  the  rule,  Clarence  Linn. 

The  opinion  of  the  court  was  delivered  by 

Magie,  J.  In  the  course  of  the  trial  defendant  offered  in  evidenrft 
an  assignjaf  nt  fnrjjipjwipfit,  of  creditors,  dated  December  8th.  1890. 
and  made  by  the  firm^of~lNigbtengale  ^rothers,  and  by  John  and 
"Joseph  Nightengale,  who  composed  that  firm., to  John  S.  Bnrkqjnw. 
The  offer  was  reject^ed  on  the  ground  that  a  defenpp.  of  that,  nlii^yj^^ipr 
should  have   been   interposed   by  plea  or  notice. 

The  rejection  of  the  evidence  oflefed'lvas'erroneous. 

By  section  2  of  our  "  Act  respecting  assignments  for  the  benefit  of 
creditors"  (Gen.  Stat.  p.  78),  such  an  instrument  operates  to  vest  in 
the  assignee  all  property  at  its  date  belonging  Jxt-tbe  assignors,  though 
not  includea  in  me  inventory  annexed^. 

Vv'lien  the  otter  was  made,  it  had  appeared  in  evidence  that  the  in- 
strument upon  which  plaintiff  rested  his  claim  to  recover  had  been 
made  at  its  date  and  delivered  to  John  Nightengale,  one  of  the  firm  of 
Nightengale  Brothers,  and  had  been  retained  in  his  possession  until 

invalid.  Leigh  i'.  Leigh  1  B.  &  P.  477;  State  v.  Jennings,  10  Ark.  428;  Kitzinger  i-. 
Beck,  4  Col.  App.  206  ;  Chapman  v.  Shattuck,  8  111.  49;  Carr  v.  Wangh,  28  111.  418; 
Chicago  Title  Co.  v.  Smith.  1.58  111.  417;  Daggett  v.  Flanagan,  78  Ind.  25.3  ;  Mc Fad- 
den  V.  Wilson,  96  Ind.  2.5.3  ;  Milliken  r.  Loring.  37  Me.  408  ;  Jones  v.  Witter,  13  Mass. 
304;  Schilling  v.  Mullen,  55  Minn.  122  ;  Leahy  v.  Dugdale,  41  Mo.  517  ;  Cameron  v. 
Little,  13  N.  H.  23  ;  Andrews  v.  Becker,  1  Johns.  426  ;  Littlefield  v.  Story,  3  Johns. 
426;  Wilson  i;.  Stilwell,  14  ()\\'\o  St.  464,  471.  Compare  Beran  v.  Tradesmen's  Nac. 
Bank,  137  N.  Y.  450;  First  Nat.  Bank  v.  Clark,  9  Baxt.  589. 


442  EMLEY   V.    PERRINE.  [CHAP.    lU. 

November  or  December,  1893,  when  it  was  delivered  bj-  liim  to  plain- 
tiff for  a  consideration. 

That  instrument  was  non-negotiable  and  the  title  which  plaintitT 
acquired  b}-  such  delivery  was  not  a  legal  but  an  equitable  title,  which, 
formerly,  US— llQuld  only  assert  by  a  suit  in  th£  name  of  the  payees 
ofJ;he  due  bill  to  kis  use.  1  Dan.  Neg.  Inst.,  §  742.  If  the  present 
suit  is  properl}'  prosecuted  in  his  own  name,  it  is  by  force  of  the  act  of 
March  4th,  1890,  amending  section  19  of  the  Practice  act.  Pamph.  L., 
p.  24;  Gen.  Stat.,  p.  2691,  §  340. 

But  a  transferee  of  non-negotiable  paper  bj'  delivery,  whether  en- 
titi]£d.,tQ  brinsr  actions  thereon  In  ht!j  OWh  nanie  or  not,  can  acquire 
no  better  title  to  the  paper  than  the  transferrer  had  at  the  time  of  tlie 
delivery.  The  assignment  offered  by  ael'ehdlllU  sliowed  that  the 
holders  of  this  due  bill  and  implied  obligation  of  defendant  had,  long 
before  its  deliver}'  to  plaintiff,  parted  with  all  their  title  thereto,  and 
that  such  title  had  thereby  vested  in  Barkalow,  their  assignee. 

The  evidence  of  the  assignment  was  clearly  relevant  and  material 
in  respect  to  the  title  of  the  plaintiff  to  the  chose  in  action  on  which  he 
sued. 

Nor  was  the  defendant  debarred  from  relying  upon  and  proving  the 
lack  of  title  of  the  plaintiff  or  his  transferrer,  because  it  had  not  been 
set  up  b}-  a  plea  or  notice. 

By  the  English  system  of  pleading  and  practice  a  defendant  in  an 
action  of  assumpsU  could  prove,  under  the  plea  of  the  general  issue, 
any  matter  which  showed  that  plaintiff  had  never  had  cause  of  action. 
1  Chit.  PI.  419.  Upon  that  plea,  until  the  adoption  of  the  new  rules 
in  the  reign  of  William  IV.,  the  question  alwaj's  was  whether  there  was 
a  subsisting  debt  or  cause  of  action  at  the  commencement  of  the  suit. 
1  Tidd.  Pr.  592.  This  was  the  system  adopted  in  this  country. 
Gould  PI.  c.  6,  part  1,  §  48.  In  this  state  the  right  of  defence  under 
the  general  issue  in  assumpsit  had  been  left  unrestrained  until  the 
passage  of  the  act  which  limits  such  defences  to  those  specified  in 
response  to  plaintiff's  demand.  In  the  case  before  us  no  demand 
seems  to  have  been  made. 

Defendant  was,  therefore,  in  no  mode  restrained  in  his  defence, 
and  evidence  tending  to  show  that  plaintiff  had  no  title  to  the  chose 
in  action  sued  on  was  competent.  The^  evidence  offt^red  would  have 
sh o w^v-thaLt  the  Iransferrer  of  this  chose  in  action  to  plaintiff  liacl_nf)t 
n^  tii>^f,  fimo  m]y  title  thcrcto,  and  therefore  could  not_and  did  not  con- 
fer any  tit^p  ^"  hhn. 

For  the  rejection  of  this  evidence  the  rule  to  show  cause  why  a  new 
trial  should  not  be  allowed  must  be  made  absolute.^ 

1  Burton  v.  Gage,  85  Minn.  355,  ace.  Other  authorities  are  collected  in  Ames's  Cas 
on  Trusts  (2d  ed.),  326,  n. 


Sect,  ii.]     pellman  v.  hart,  cummings  and  hart.  443 

PELLMAN  AND  Another  v.  HART,  CUMMINGS  and  HART.  , 

Pennsylvania  Supreme  Court,  July  Term,  1845.  ^.  A/*'^^^ 

[Repoiied  in  1  Pennsylvania  State,  263.] 

In  error.     The  opinion  of  the  court  was  delivered  by  Rogers,  J. 

The  plaintiffs.  Hart,  Cummings  and  Hart,  having  issued  an  execu- 
tion on  a  judgment,  rendered  in  their  favor,  against  Daniel  Beckle}-, 
attached  a  note  for  $311,  given  by  Samuel  H.  Knid^t  and  Elizabeth 
C.  Knight,  to  the  said  Daniel  Beckley.  The  garnisKee^  admit  the  note 
to  be  in  part  justly  due,  but  allege  that  previously  to  the  attachment, 
viz.,  on  the  5th  September,  1844,  Daniel  Beckley  assigned  the  note 
for  a  valuable  consideration  to  ^lary  Beckley.  The  plaintiff  replies 
that  the  note  was  not  assigned  before  service  of  the  attachment ;  that 
if  it  were  assigned,  it  was  fraudulent ;  that  it  was  delivered  afterwards 
to  Beckley  to  effect  a  compromise  with  his  creditors,  so  that  he  might 
not  be  compelled  to  take  the  benefit  of  the  bankrupt  law,  and  that  the 
note  was  in  his  possession  at  the  time  the  attachment  was  served. 

The  court  put  thecase_Qn  the  true  point,  when  they  referred  it^lQ 
the  jury  to  say,  whether  the  ttan^er  to_^ar^"  Beckley  was  bona  ,fidej_ 
and  if  so,  whether  Daniel  ^Beckley  again' became  the  owner  of  the  note^. 
and  was  so  at  the  time  it  was  attached.  That  the  note  was  assigned 
before  the  attachment,  there  was  no  doubt ;  and  to  the  points  in  con- 
test, the  jury  responded  in  favor  of  the  defendant ;  and  even  if  wrong, 
the  error  can  only  be  remedied  on  a  motion  for  a  new  trial.  The 
only  inquiry  is,  in  arriving  at  this  result:  ,Have  the  court  erred  in 
their  instruction   to   thejur}'? 

The  plaintiffs,  it  is  contended,  have_a^_right  of  action,  because  no 
notice  was  given  of  the  assignment  before  the  note  was  attached. 

If  the  debtor  had  paid  the  note  as  in  Bury  v.  Hartman,  4  Serg.  & 
Rawle,  177,  or  had  become  bound  as  security  of  tlie  promisor,  as  in 
Frantz  v.  Brown,  17  Serg.  &  Rawle,  287,  it  would  be  a  good  defence, 
unless  they  had  notice  of  the  assignment.  This  rule  is  intended  for  the  ^ 
protection  of  the  debtor.  So  equity  will  protect  the  assignee  or  pur-  |1 
chaser.^-£Qr  a  valuable  consideration  without  notice  of  the  assignment.  Ii 
These  are  principles  which  cannot  be  gainsayed,  and  are  recognized  by 
UiUn}'  cases  ruled  in  this  and  other  courts.  But  this  is  not  the  point 
iiere,  fca' immediately  on  the  assignment,  a,s  between  t|ie  assignor,  who  is 
tjjLS,  original  jpromisor,  tQ_the  assitrnee.  and  t.lie  latter,  t.^e  eguitable  title 
ve.sts  in  the  assignee,  which  of  course  cannot  be  taken  to  pay  the  debt 
_o£_tbe  assignor.  All  that  can  be  seized  in  execution,  is  the  right  wliich 
remains  in  the  assignor ;  and  tliis  is  nothing  more,  where  the  assign- 
ment is  made  bona  Jide,  than  the  legal  title,  subject  to  the  equitable 
interest  of  the  assignee.  A  general  creditor,  unless  a  purchaser  with- 
out notice,  is  in  no  better  situation  than  the  debtor,  and  cannot  sell  a 


444  PELLMAN    V.   HART,    CUMMINGS   AND   HART.      [CHAP.    III. 

greater  interest  than  the  debtor  has  —  a  principle  which  applies  as  well 
to  choses  in  action,  as  a  note  or  bond,  as  to  any  other  chattel.  He  is 
not  considered  in  the  light  of  a  purchaser  without  notice,  nor  has  he 
tlie  right  of  one.  The  assignment,  as  is  said  in  Bury  v.  Ilartman, 
operates  as  a  new  contract  between  the  obligor  and  the  assignee,  com- 
mencing upon  notice  of  the  assignment ;  but  this  is  not  at  all  incon- 
sistent with  the  principle,  that  as  between  the  obligor  and  the  assignee 
the  latter  acquires  such  an  equity,  eo  instanti  the  assignment  is  made, 
as  cannot  be  defeated  by  the  creditors  of  the  obligor.^ 

Again,  it  is  said,  the  note  was  re-delivered  to  Beckley,  and  therefore 
the  subject  of  attachment.  It  is  unquestionably  true,  that  if  the  note 
had  been  re-transferred  properly  to  the  original  owner,  it  would  be 
liable  to  debts  of  the  execution  creditor ;  but  when  it  was  delivered  for 
the  special  purpose,  as  the  jury  have  found,  of  effecting  a  compromise 
with  creditors,  which  failed,  it  remains  the  property  of  the  assignee, 
and  consequently  gives  no  right  to  the  attaching  creditor.  And  to  this 
effect,  the  court  instructed  the  jury. 

It  is  also  contended,  that  the  note  was  assigned  in  contemplation 
of  bankruptcy,  and  therefore  void^^  This  is  a  point  not  taken  in  the 
Court  of  Common  Pleas  ;  yet  admitting  the  point  to  be  as  is  stated, 
as  between  the  promissor  and  the  assignee,  the  title  passes.  And, 
although,  if  the  debtor  had  been  prosecuted  to  bankruptcy,  the  assign- 
ment may  have  been  avoided  ;  yet  never  having  become  bankrupt,  I 
do  not  see  what  right  any  one  of  the  creditors  has  to  attach  the  note 
in  payment  of  his  debts. 

Judgment  affirmed. 

1  Pickering  v.  Ilfracombe  Ry.  Co.,  L.  R.  3  C.  P.  235  ;  Jones  v.  Lowery,  104  Ala. 
252;  "Walton  v.  Horkan,  112  Ga.  814;  Savage  v.  Gregg,  150  111.  161;  McGuire  v. 
Pitts,  42  la.  535  ;  Littlefield  v.  Smith,  17  Me.  327  ;  "Wakefield  v.  Marvin,  3  Mass.  558  ; 
Dix  V.  Cobb,  4  Mass.  512  ;  Thayer  v.  Daniels,  113  Mass.  129  ;  MacDonald  v.  Kneelaud, 
5  Minn.  352  ;  Schoolfield  v.  Hirsh,  71  Miss.  55  ;  Smith  v.  Sterritt,  24  Mo.  260  ;  Knapp 
V.  Standley,  45  Mo.  App.  264  ;  Hendrickson  v.  Trenton  Bank,  81  Mo.  App.  332  ;  Marsh 
V.  Garney,  69  N.  H.  236 ;  Board  v.  Duparquet,  50  N.  J.  Eq.  234  ;  Van  Buskirk  v. 
Warren,  24  Barb.  457  ;  Williams  v.  Ingersoll,  89  N.  Y.  508  ;  Meier  v.  Hess,  23  Oreg. 
599;  Stevens  f.  Stevens,  1  Ashmead,  190;  United  States  ;•.  Vaughan,  3  Binn.  394; 
Speed  V.  May,  17  Pa.  91  ;  Pattou  v.  Wilson,  34  Pa.  299  ;  Noble  v.  Thompson  Oil  Co., 
79  Pa.  354,  367  ;  Tiernay  v.  McGarity,  14  R.  I.  231  ;  Brown  v.  Minis,  1  McCord,  80; 
B.allingham  Co.  v.  Brisbois,  14  Wash.  173,  ace. ;  Bishop  v.  Holcomb,  10  Conn.  444; 
"Vanbuskirk  v.  Hartford  Ins.  Co.,  14  Conn.  141  ;  (conf.  Clark  v.  Connecticut  Peat  Co., 
35  Coun.  303) ;  Clodfelter  v.  Cox,  1  Sneed,  330  ;  Dews  v.  Olwill,  3  Baxt.  432  ;  Rhodes 
V.  Hayues,  95  Tenn.  673;  Ward  v.  Morrison,  25  "Vt.  593;  Nichols  v.  Hooper,  61  Vt. 
295,  contra.  See  also  McWilliams  i;.  Webb,  32  la.  577 ;  Ruthven  v.  Clarke,  109  la. 
25  ;  Whiteside  v.  Tall,  88  Mo.  App.  186,  171. 

/ 


Ni 


SECT,   n.]      BBIDGE   V.   CONN.   MUTUAL  LIFE  INS.   CO.  445 


M.   WELLS  BRIDGE  v.   CONNECTICUT    MUTUAL   LIFE 
INSURANCE   COMPANY. 

Supreme  Judicial  Court  of  Massachusetts,  October  1-24,  1890. 

[^Reported  in  152  Massachusetts,  343.] 

Contract,  brought  b}-  the  administrator  of  the  estate  of  Frank  W. 
Wheeler  for  the  benefit  of  Nelson  W.  Holden  and  Horace  M.  Hedden, 
upon  a  policy  issued  by  the  defendant  upon  the  life  of  the  intestate. 
The  defendant  admitted  its  liability,  and  paid  the  amount  of  the 
polic}'  into  court,  and  Hoyt  H.  Wheeler  intervened  as  claimant  of 
the  fund.  In  the  Superior  Court,  Dunbar,  J.,  who  tried  the  case 
without  a  jury,  found  for  the  plaintiff;  and  the  claimant  alleged 
exceptions.     The  facts  appear  in  the  opinion. 

(/.  A.  Titus,  for  the  claimant. 

W.  B.  Harding  (  W.  E.  Sibley  with  him),  for  the  plaintiflf. 

W.  Allen,  J.  The  policy  sued  on  is  dated  Jul}-  31,  1880,  and  was 
dul}'  assigned,  under  date  of  August  1,  1880,  to  Holden  and  Hedden, 
for  whose  benefit  the  action  is  brought  by  the  plaintiff,  the  adminis- 
trator of  the  assured.  Under  the  St.  of  1886,  c.  281,  the  defendant 
brought  the  amount  due  into  court,  and  dropped  out  of  the  case,  and 
Wheeler  came  in  as  claimant  of  the  fund  ;  and  the  proceeding  is  now 
between  him,  on  the  one  hand,  and  Holden  and  Hedden,  on  the  other, 
to  determine  which  of  them  has  the  equitable  interest  in  the  fund, 
the  legal  title  to  which  is  in  the  plaintiff  as  administrator.  The  assign- 
ment to  Holden  and  Hedden  was  upon  full  consideration,  and  was 
taken  by  them  in  good  faith,  and  without  notice  of  the  claim  of 
Wheeler,  who  was  the  assignee  of  a  former  polic}',  upon  and  in  con- 
sideration of  the  surrender  of  which  the  polic}'  in  suit  was  issued. 
The  court  found  that  Wheeler  was  guilty  of  laches  ;  and  the  real  ques- 
tion is  whether  the  facts  stated  in  the  exceptions  are  sufficient  to  sus- 
tain that  finding. 

The  original  policy  was  dated  August  4,  1870,  and  was  for  five 
thousand  dollars.  The  first  assignment  to  Wheeler  was  of  the  interest 
of  the  assured  in  the  policy,  one  thousand  dollars  of  which  had  been 
assigned  to  another  person  ;  two  or  three  3'ears  later,  the  latter  assign- 
ment was  released;  and  a  week  or  two  after  that,  in  April,  1875,  a 
new  assignment  of  the  entire  policy  was  made,  and  sent  with  the  policy 
to  Wheeler.  In  September,  1878,  Wheeler  reassigned  to  the  assured 
all  but  two  thousand  dollars  of  the  policy,  and  sent  the  polic}-  with 
the  assignment  and  reassignment  to  him.  This  was  nearly  two  j-ears 
before  the  policy  was  surrendered.  There  was  correspondence  in 
regard  to  the  matter,  but  all  that  was  put  in  evidence  was  a  letter 
written  to  Wheeler  by  the  assured,  dated  three  days  befoi-e  the  policy 
was  sent,  in  which  he  says:  "  Yours  is  just  at  hand,  and  in  reply  I 
will  say,  I  don't  want  to  surrender  the  policy  if  I  can  help  it,  and  if 


446  BRIDGE  V.   CONN.   MUTUAL   LIFE  INS.   CO.       [CHAP.   IH. 

you  will  release  four  thousand  dollars  of  it  I  can  arrange  the  payment 
and  keep  it  along,  I  think,  or  you  may  release  three  thousand  dollars, 
and  that  will  leave  j^ou  the  two  thousand;  if  you  release  the  four 
thousand,  it  will  leave  you  more  than  the  paid-up  policy,  and  I  would 
like  to  have  j'ou  release  to  me  three  or  four  thousand  of  the  policy  and 
send  the  policy  to  me,  and  I  will  keep  it  all  straight  for  you  and  mj'self. 
I  am  anxious  to  keep  the  policy  in  force,  for  I  could  not  get  a  policy 
now.  I  hope  you  will  send  it  at  once,  for  the  premium  is  now  over  one 
month  past  due.  I  will  assure  you  that  it  shall  be  all  right."  When 
Wheeler  sent  the  policy  and  the  reassignment  of  all  but  two  thousand 
dollars  of  it,  in  accordance  with  this  request,  he  had  reason  to  believe 
that  the  assured  intended  to  use  it  in  some  way  for  raising  mone}-. 
No  notice  was  given  to  the  insurance  company,  and  it  does  not  appear 
that  there  was  any  further  communication  between  the  parties  in 
regard  to  it,  or  any  inquiry  concerning  the  use  made  of  it,  before  the 
death  of  the  assured,  in  November,  1888. 

The  policy  contained  the  provision  that  no  assignment  of  it  should 
be  valid  unless  made  in  writing  indorsed  thereon,  and  there  was  noth- 
ing in  the  policy  to  show  that  assignments  not  indorsed,  or  assign- 
ments of  partial  interests  in  a  polic}",  would  be  recognized  by  the 
company.  Wheeler  was  not  the  assignee  of  the  policy  when  he 
returned  it  to  the  assured,  but  of  a  partial  and  minor  interest  in  it, 
and  that  fact  is  pertinent  in  respect  to  the  precautions  proper  to  be 
taken  against  the  acceptance  h\  the  company  of  its  surrender  without 
notifying  him.  There  was  a  less  danger  that  the  company  would 
accept  the  surrender  of  a  policy  from  an  assured,  who  had  no  interest 
in  it,  and  had  made  a  valid  assignment  of  it,  than  from  one  who  held 
the  major  interest  in  the  polic}',  and  who  had  made  an  assignment 
of  a  minor  interest  without  its  consent. 

The  assignment  to  Wheeler  was  not  written  upon  the  policy,  but 
upon  a  separate  piece  of  paper,  which  was,  as  the  bill  of  exceptions 
states,  attached  "  to  the  said  policy  with  gluten  on  the  upper  edge  of 
the  assignment."  The  reassignment  to  the  assured  was  also  on  a 
separate  piece  of  paper  from  the  policy.  The  papers  were  returned  to 
the  assured  b}'  Wheeler  in  this  condition.  When  the  policy  was  pre- 
sented for  surrender,  the  paper  had  been  removed  from  it,  and  it  does 
not  appear  that  there  was  anything  in  the  appearance  of  the  polic}' 
to  put  the  insurance  company  on  inquiry,  and  the  company  had  no 
knowledge,  and  no  notice,  actual  or  constructive,  that  there  was  an}' 
assignment  of  the  policy.  It  cannot  be  said  that  the  fact  that  a  paper 
containing  a  written  assignment  had  formerly  been  attached  to  the  back 
of  the  policy  was  constructive  notice.  The  insurance  company  in 
accepting  the  surrender  of  policy,  could  not  be  expected  to  look  for  an 
assignment,  except  as  indorsed  on  the  policy.  Wheeler  put  the  policy 
into  the  hands  of  the  assured  with  no  assignment  written  upon  it  or 
indorsed  upon  it,  except  as  it  was  written  upon  a  separate  paper 
attached  to  the  back  of  the  policy'  in  such  a  manner  that  it  could  be 


SECT,    n.]  CHAPMAN   V.    SHATTUCK.  447 

removed.  The  question  is  not  whether  the  assignment  was  indorsed 
upon  the  policy  so  as  to  be  valid  as  against  the  companj*,  —  we 
express  no  opinion  as  to  that,  —  but  whether  the  claimant  was  in 
fault  in  giving  the  opportunity-  for  a  fraud,  from  which  he  or  a  party 
not  in  fault  must  suffer. 

We  think  that  the  court  properh'  refused  to  give  the  particular  rul- 
ings asked,  which  were,  in  substance,  that  the  claimant  had  not  been 
guilty  of  laches,  and  that  the  plaintiff  had  no  title  as  against  him ;  and 
that  there  was  sufficient  evidence  to  sustain  the  findings  of  the  court 
that  the  claimant  was  guilty  of  laches. 

JExceptions  overruled.^ 


THOMAS   CHAPMAN,   Plaintiff  in  Error,  v.  SCOVILLE 

SHATTUCK,    Defendant  in  Error.  i/ 

Illinois  Supreme  Court,  December  Term,  1846. 

[Reported  in  8  Illinois,  49.] 

Treat,  J.  This  was  an  action  of  debt  commenced  by  Chapman 
against  Shattuck.  The  declaration  was  on  an  appeal  bond  in  the 
penalty  of  seventy-one  dollars.  At  the  return  term,  Shattuck  moved  to 
dismiss  the  case  and  filed  a  stipulation  signed  by  him  and  Chapman, 
stating  that  the  suit  had  been  settled,  and  agreeing  that  it  should  bo 
dismissed  at  the  costs  of  Shattuck.  The  motion  was  resisted  by  W.  T. 
Burgess,  P^sq.,  the  plaintiff's  attorne}'.  He  read  an  affidavit,  alleging  in 
substance  that  it  had  been  agreed  between  him  and  his  client  that  a 
balance  of  seven  dollars,  due  him  for  services  as  attorney  in  this  and  a 
former  case,  should  be  paid  out  of  the  proceeds  of  the  judgment  to  be 
recovered  in  this  suit.  That  before  the  date  of  the  stipulation  to 
dismiss,  he  notified  Shattuck  of  the  agreement  between  him  and  his 
client;  and  that  the  settlement  was  made  without  his  knowledge  or  con- 
sent. The  Circuit  Court  dismissed  the  case  according  to  the  terms  of 
the  stipulation.     That  decision  is  now  assigned  for  error. 

It  is  insisted  that  Burgess  had  such  an  interest  in  the  subject  matter 
of  the  suit,  as  to  preclude  the  parties  from  compromising  it  without 
providing  for  the  payment  of  the  amount  due  him.  If  this  position  can 
be  sustained,  it  must  be  on  the  ground  that  he  was  the  equitable  assignee 
of  the  chose  in  action,  on  which  the  suit  was  instituted.  The  doctrine 
is  now  well  settled,  that  courts  of  law  will  recognize  and  protect  the 
rights  of  the  assignee  of  a  chose  in  action,  whether  the  assignment  be 
good  at  law,  or  in  equity  onl}-.  If  valid  in  equity  only,  the  assignee  is 
permitted  to  sue  in  the  name  of  the  person  having  the  legal  interest, 
and  to  control  the  proceedings.  The  former  owner  is  not  allowed  to 
interfere  with  the  prosecution,  except  so  far  as  may  be  necessary  to 
protect  himself  against  the  payment  of  costs.     After  the  debtor  has 

1  See  Price  v.  Morning  Star  Co.,  83  Mo.  App.  470. 


448        BRITISH   WAGGON   CO.,    ETC.,    V.   LEA   AND   CO.     [CHAP.    III. 

knowledge  of  the  assignment,  he  is  inhibited  from  doing  an}-  act  which 
ma}'  prejudice  the  rights  of  the  assignee.  Payment  b}-  him  to  the 
nominal  creditor,  after  notice  of  the  assignment,  will  be  no  defence  to 
an  action  brought  for  the  benefit  of  the  assignee.  Any  compromise  or 
adjustment  of  the  cause  of  action  by  the  original  parties,  made  after 
notice  of  the  assignment,  and  without  the  consent  of  the  assignee,  will 
be  void  as  against  him.  Andrews  v.  Becker,  1  Johns.  Cases,  411; 
Littlefield  v.  Stor}-,  3  Johns.  426;  Raymond  v.  Squire,  11  do.  47; 
Anderson  v.  Van  Allen,  12  do.  343  ;  Jones  v.  Withe,  13  Mass.  304  ; 
Welch  V.  Mandeville,  1  Wheaton,  233  ;  McCullom  v.  Coxe,  1  Dallas, 
134.  A  partial  assignment,  however,  of  the  chose  in  action  will  not 
suffice  to  bring  the  case  within  the  principle.  The  whole  cause  of  action 
must  be  assigned.  It  was  well  remarked  by  Justice  Stor}',  in  Mande- 
ville V.  Welch,  5  Wheaton,  277,  that  '^  a  creditor  jhall  not  be  permitted 
to  split  up  a  single  cause  of  action  into  many  actions  without-lhe 
assent  of  his  debtor,  since  it  may  subject  him  to  manj'  embarrassments 
and  responsibilities  not  contemplated  in  his  original  contra'ct".  HeTias" 
a  right  to  stand  upon  the  singleness  of  bis  original  contract,  and  to 
decline  an}'^  legal  or  equitable  assignments  by  which  it  may  be  broken 
into  pa3'ments.  When  he  undertakes  to  pa^^  an  integral  sum  to  his 
creditor,  it  is  no  part  of  his  contract  that  he  shall  be  obliged  to  pa}-  in 
fractions  to  any  other  persons."  In  the  case  before  us,  it  is  not  pre- 
tended that  there  was  an  assignment  of  the  entire  cause  of  action.  By 
the  terms  of  the  agreement.  Burgess  was  only  to  receive  a  portion  of 
the  proceeds  of  the  bond.  This  gave  him  no  power  over  the  suit. 
Chapman  had  not  so  parted  with  his  interest  in  the  bond  as  to  lose  his 
right  to  control  it.  Shattuck  was  not  bound  to  notice  the  claim  of 
Burgess.  The  parties  to  the  record  were  at  full  libert}'  to  compromise 
the  case,  and  having  done  so,  the  Circuit  Court  did  right  in  carrying 
their  stipulation  into  effect. 

The  judgment  of  the  Circuit  Court  is  affirmed  with  costs. 

Judgment  affirmed} 


''J 
THE  BRITISH  WAGGON  COMPANY  AND  THE  PARKGATE 
WAGGON  COMPANY  v.   LEA  AND  COMPANY. 

In  the  Queen's  Bench  Division,  January  13,  1880. 

[Reported  in  5  Queen's  Bench  Division,  149.] 

Special  Case,  the  material  part  of  which  is  stated  in  the  judgment 
of  the  court. 

A.  Wills,  Q.  C.  (Forbes  and  Lqfthouse  with  him),  for  the  plaintiffs. 
A.  L.  Smith  {A.  Kingdon  with  him),  for  the  defendants. 

Cur.  adv.  nit. 

1  The  authorities  in  regard  to  partial  assignments  are  collected  in  Ames's  Cas.  on 
Trusts  (2d  ed.),  63  n. 


SECT.    II.]      BRITISH    WAGGON   CO.,    ETC.,    V.   LEA   AND    CO.  449 

The  judgment  of  the  court  (Cockburn,  C.  J.,  and  Manisty,  J.)  was 
delivered  by  — 

Cockburn,  C.  J.  This  was  an  action  brought  by  the  plaintiffs  to 
recover  rent  for  the  hire  of  certain  railway  waggons,  alleged  to  be 
payable  by  the  defendants  to  the  plaintiffs,  or  one  of  them,  under  the 
following  circumstances :  — 

By  an  agreement  in  writing  of  Feb.  10,  1874,  the  Parkgate  Waggon 
Company  let  to  the  defendants,  who  are  coal  merchants,  lift}'  railway' 
waggons  for  a  term  of  seven  years,  at  a  yearly  rent  of  £600  a  year, 
paj'able  by  equal  quarterl3'  paj-ments.  By  a  second  agreement  of 
June  13,  1874,  the  company'  in  like  manner  let  to  the  defendants  fifty 
other  waggons,  at  a  j'early  tent  of  £625,  pa^-able  quarterly  like  the 
former. 

Each  of  these  agreements  contained  the  following  clause:  "The 
owppra,  tt^pir  RTrecutors,  or  administrators,  will  at  all  times  during  the 
■said  tprm^  except  as  herein  provided,  keep  the  said  waggons  in  good 
and  substantial  repair  and  working  order,  and,  on  receiving  notice 
from  thp  tpnanf  nf  any  want  of  repairs,  and  the  number  or  numbers  of 
{Kewaggons  requiring  to  be  repaired,  and  the  place  or  places  wh  ere_ 
iForthe}'  then  is^r  are,  will^_with  all  reasonable  despatch,  cause  the 
same  _to  be  repaired  and  put  into  good  working  order.' ' 

On  Oct.  24,  1874,  the  Parkgate  Company  passed  a  resolution,  under 
the  129th  section  of  the  Companies  Act,  1862,  for  the  voluntary  winding 
up  of  the  compau}-.  Liquidators  were  appointed,  and  by  an  order  of 
the  Chancer}'  Division  of  the  High  Court  of  Justice,  it  was  ordered  that 
the  winding  up  of  the  company  should  be  continued  under  the  supervision 
of  the  court. 

By  an  indenture  of  April  1,  1878i_the  Parkgate  Company  assigned.^ 
nnd  tvansferred.  and  the  liquidators  confirmed  to  the  British  Company 
and  their  ^assigns,  among  other  things^  all  sums  of  money,  whether 
payable  by  way  of  rent,  hire,  interest,  penalty,  or  damage,  then  due,__or 
thereafter  to  become  due,  to  the  Parkgate  Compan}',  by  virtue  of  the 
two  contracts  with  the  defendants,  together  with  the  benefit  of  the  two 
contracts7~and  all  the  interest  of  the  Parkgate  Company  and  thejsaid_ 
lij^iiidfltors  ffh^'^ein  j  the  British  Company,  on  the  other  hand,  covenant- 
ing with  the  Parkgate  Company  "  to  observe  and  perform  such  of  the 
stipulations,  conditions,  provisions,  and  agreements  contained  in  the 
said  contracts  as,  according  to  the  terms  thereof,  were  stipulated  to  be 
observed  and  performed  by  the  Parkgate  Company'."  On  the  execution 
of  this  assignment  the  British  Companj'  took  over  from  the  Parkgate 
Company  the  repairing  stations,  which  had  previousl}'  been  used  b}-  the 
Parkgate  Company  for  the  repair  of  the  waggons  let  to  the  defendants, 
and  also  the  staff  of  workmen  employed  b}'  the  latter  compan}'  in  exe- 
cuting such  i-epairs.  It  is  expressly  found  that  the  British  Compan}' 
have  ever  since  been  read}'  and  willing  to  execute,  and  have,  with  all 
due  diligence,  executed  all  necessary  repairs  to  the  said  waggons. 
This,  however,  they  have   done  under  a  special  agreement  come  to 

VOL.    1.  —  -o 


450        BRITISH   WAGGON   CO.,   ETC.,    V.   LEA   AND   CO.     [CHAP.   III. 

between   the   parties   since   the   present  dispute   has   arisen,  withe iit 
prejudice  to  their  respective  rights. 

Ju  this  state  of  thiii";s  the  defendants  asserted  their  right  to  treat  tliQ 
contract  as  at  an_end,  on__thegro  u  nd  tliat  tjiej^-kgate  Conip  a  ny  had 
incapacitated  themselves  from  performing  the  contract,  first,  by  going 
Into  voluntary  HquidationTsecoadly.  by  assigning  tlie^  contractSj_and_ 
giving  up  the  repairing  stations  to  the  British  Cogipaii^  l^etween  whom 
and  the  defendants  there  was  no  priyiU'  of  contract,  and  whose  services^ 
in  substitution  for  those  to  be  performed  by  the  Parkgate  Company 
under  the  contract,  they  the  defendants  were  not  bound  to  accept.  The 
Parkgate  Company  not  acquiescing  in  this  view,  it  was  agreed  that  the 
facts  should  be  stated  in  a  special  case  for  the  opinion  of  this  court, 
the  use  of  the  waggons  by  the  defendants  being  in  the  meanwhile  con- 
tinued at  a  rate  agreed  on  between  the  parties,  without  prejudice  to 
either,  with  reference  to  their  respective  rights. 

The  first  ground  taken  by  the  defendants  is  in  our  opinion  altogether 
untenable  in  the  present  state  of  things,  whatever  it  ma}'  be  when  the 
affairs  of  the  company  shall  have  been  wound  up,  and  the  company 
itself  shall  have  been  dissolved  under  the  111th  section  of  the  Act. 
Pending  the  winding  up,  the  company  is  b}'  the  effect  of  ss.  95  and  131 
kept  alive,  the  liquidator  having  power  to  carry  on  the  business,  "so 
far  as  ma}'  be  necessary  for  the  beneficial  winding  up  of  the  company," 
which  the  continued  letting  of  these  waggons,  and  the  receipt  of  the 
rent  payable  in  respect  of  them,  would,  we  presume,  be. 

What  would  be  the  position  of  the  parties  on  the  dissolution  of  the 
company  it  is  unnecessiary  for  the  present  purpose  to  consider. 

The  main  contention  on  the  part  of  the  defendants,  however,  was 
that,  as  the  Parkgate  Company  had,  by  assigning  the  contracts,  and  by 
making  over  their  repairing  stations  to  the  British  Company,  incapaci- 
tated themselves  to  fulfil  their  obligation  to  keep  the  waggons  in 
repair,  that  company  had  no  right,  as  between  themselves  and  the 
defendants,  to  substitute  a  third  party  to  do  the  work  they  had  engaged 
to  perform,  nor  were  the  defendants  bound  to  accept  the  party  so 
substituted  as  the  one  to  whom  they  were  to  look  for  performance  of 
the  contract ;  the  contract  was  therefore  at  an  end. 

The  authority  principally  relied  on  in  support  of  this  contention  was 
the  case  of  Robson  v.  Drummond,  2  B.  &  Ad.  303,  approved  of  by  this 
court  in  Humble  v.  Hunter,  12  Q.  B.  310.  In  Robson  v.  Drummond, 
2  B.  &  Ad.  303,  a  carriage  having  been  hired  by  the  defendant  of  one 
Sharp,  a  coachmaker,  for  five  years,  at  a  yearly  rent,  payable  in  advance 
each  year,  the  carriage  to  be  kept  in  repair  and  painted  once  a  year  by 
the  maker — Robson  being  then  a  partner  in  the  business,  but  unknown 
to  the  defendant — on  Sharp  retiring  from  the  business  after  three  years 
had  expired,  and  making  over  all  interest  in  the  business  and  property 
in  the  goods  to  Robson,  it  was  held  that  the  defendant  could  not  be 
sued  on  the  contract,  —  by  Lord  Tenterden,  on  the  ground  that  "  tbe^ 
defendant  mightjbiave  been  induced  to  enterjntothe^cqn tract  b}'  reason 


SECT.    II.]      BRITISH    WAGGON   CO.,   ETC.,    V.    LEA    AKD   CO.  451 

of  the^  personal  confidence  which  he  reposed  in  Sharp,  and  therefore_ 
might ^ave_agreed  to  pay  money  in  advance,  for  which  reasqn_the_ 
defendant  had  a  right  to  object  to  its  being  performed  b}'  anj'  other- 
person^;  "  and  b}'  Littledale  and  Parke,  JJ.,  on  the  additional  ground 
that  the  defendant  had  a  right  to  the  personal  services  of  Sharp,  and  to 
the  benefit  of  his  judgment  and  taste,  to  the  end  of  the  contract. 

In  like  manner,  where  goods  are  ordered  of  a  particular  manufacturer, 
another,  who  has  succeeded  to  his  business,  cannot  execute  the  order, 
so  as  to  bind  the  customer,  who  has  not  been  made  aware  of  the  transfer 
of  the  business,  to  accept  the  goods.  The  latter  is  entitled  to  refuse  to 
deal  with  any  other  than  the  manufacturer  whose  goods  he  intended  to 
bu}-.  For  this  Boulton  v.  Jones,  2  H.  &  N,  564,  is  a  suflflcient  authority. 
The  case  of  Robson  v.  Drummond,  2  B.  &  Ad.  303,  comes  nearer  to  the 
present  case,  but  is,  we  think,  distinguishable  from  it.  We  entirely 
concur  in  the  principle  on  which  the  decision  in  Robson  v.  Driimmond^ 
2  B.  &  Ad.  303,  rests,  name!}',  that  where  a  person  contracts  with  another  _ 
■to^do  work  or  perform  se«dcg^and  it  can  be  inferred  that  the  person 
gmploy^ed  has.^en  selected  with  reference  to  his  ijidividual  skill,  com-* 
.getency,  or  other  personal  qualification, _thejnabilit3'  or  unwillingness 
of  the  party  so  emplo3'ed  to  execute  the  worl^or  perform  the  service  is^ 
a  sufficient  answer  to  anjidemand  by  a  §toanger  to  the  origiiial  contract 
of  the  performance  of  it  b}'  the  other  party,  and, entitles  the  latter  to 
treat  tSe  contract  as  at  an  end,  notwithstanding  that  the  person  ten- 
dered to  take  the  place  of  the  contracting^jmriyjnay  be  equally  welL 
qualified  to  do  the  service^  Personal  performance  is  in  such  a  case  of  f\f 
the  essence  of  tlie  contract,  which,  consequently,  cannot  in  its  absence 
be  enforced  against  an  unwilling  party.  But  this  principle  appears  to 
us  inapplicable  in  the  present  instance,  inasmucli  as  we  cannot  suppose 
that  in  stipulating  for  the  repair  of  these  waggons  by  the  company  —  a 
rough  description  of  work  which  ordinary'  workmen  conversant  with  the 
business  would  be  perfectly  able  to  execute  —  the  defendants  attached 
any  importance  to  whether  the  repairs  were  done  bj'  the  company,  or  by  I 
an}'  one  with  whom  the  company  might  enter  into  a  subsidiar\'  contractH 
to  do  the  work.  All  that  the  hirers,  the  defendants,  cared  for  in  this 
stipulation  was  that  the  waggons  should  be  kept  in  repair ;  it  was  in- 
difl'erent  to  them  by  whom  the  repairs  should  be  done.  Thus  if,  with- 
out going  into  liquidation,  or  assigning  these  contracts,  the  company 
had  entered  into  a  contract  with  an}'  competent  party  to  do  the  repairs, 
and  so  had  procured  them  to  be  done,  we  cannot  think  that  this  would 
have  been  a  departure  from  the  terms  of  the  contract  to  keep  the 
waggons  in  repair.  While  fully  acquiescing  in  the  general  principle 
just  referred  to,  we  must  take  care  not  to  push  it  beyond  reasonable 
limits.  And  we  cannot  but  think  that,  in  applying  the  principle,  the 
Court  of  Queen's  Bench  in  Robson  v.  Drummond,  2  B.  &  Ad.  303,  went 
to  the  utmost  length  to  which  it  can  be  carried,  as  it  is  difficult  to  see 
how  in  repairing  a  carriage  when  necessary,  or  painting  it  once  a  year, 
preference  would  be  given  to  a^e  coachmaker  over  another.     Much 


11 


452  SMELTING   CO.    V.   BELDEN   MINING   CO.       [CHAP.   in. 

work  is  contracted  for,  which  it  is  known  can  only  be  executed  by 
means  of  subcontracts ;  much  is  contracted  for  as  to  which  it  is  indif- 
ferent to  the  party  for  whom  it  is  to  be  done,  whether  it  is  done  by  the 
inamediate  party  to  the  contract,  or  by  some  one  on  his  behalf.  In  all 
these  cases  the  maxim  Qid  facit  per  alium  facit  per  se  applies. 

In  the  view  we  take  of  the  case,  therefore,  the  repair  of  the  waggons, 
undertaken  and  done  by  the  British  Company  under  their  contract  with 
the  Farkgate  Company,  is  a  sufficient  performance  by  the  latter  of  their 
engagement  to  repair  under  their  contract  with  the  defendants.  Con- 
sequently, so  long  as  the  Parkgate  Company  continues  to  exist,  and, 
through  the  British  Company,  continues  to  fulfil  its  obligation  to  keep 
the  waggons  in  repair,  the  defendants  cannot,  in  our  opinion,  be  heard 
to  say  that  the  former  company  is  not  entitled  to  the  performance  of 
the  contract  by  them,  on  the  ground  that  the  company  have  incapaci- 
tated themselves  from  performing  their  obligations  under  it,  or  that,  by 
transferring  the  performance  thereof  to  others,  they  have  absolved  the 
defendants  from  further  performance  on  their  part. 

Xliai-a.-deliL_accruing  due  under  a  contract  can,  since  the  passing  ot 
tlie  Judicature  Acts,  be  assigned  at  law  as  well  as  equity,  cannot  since 
jhe  decision  in  Brice  v.  Banister,  3  Q.  B.  D.  569,  be  disputed.  . 

We  are  therefore  of  opinion  that  our  judgment   must  be  forjtlis^ 
plaintiffs  for  the  amount  claimed.^ 


V 


ARKANSAS  VALLEY  SMELTING  COMPANY  v.  BELDEN 
MINING  COMPANY. 

Supreme   Court  of  the  United   States,  April  2  —  May  14,  1888. 

[Reported  in  127  U.  S.  379.] 

This  was  an  action  brought  by  a  smelting  company,  incorporated  by 
the  laws  of  Missouri,  against  a  mining  company,  incorporated  by  the 
laws  of  Maine,  and  both  doing  business  in  Colorado  by  virtue  of  a 
compliance  with  its  laws,  to  recover  damages  for  the  breach  of  a  con- 
tract to  deliver  ore,  made  by  the  defendant  with  Billing  and  Eilers,  and 
assigned  to  the  plaintiff.  The  material  allegations  of  the  complaint 
were  as  follows  :  — 

On  July  12,  1881,  a  contract  in  writing  was  made  between  the 
defendant  of  the  first  part  and  BilUng  and  Eilers  of  the  second  part, 
by  which  it  was  agreed  that  the  defendant  should  sell  and  deliver  to 
Billing  and  Eilers  at  their  smelting  works  in  Leadville  ten  thousand 
tons  of  carbonate  lead  ore  from  its  mines  at  Red  Cliff,  at  the  rate  of  at 

1  Compare  Griffith  v.  Tower  PuWishing  Co.  (1897),  1  Ch.  21 ;  Tolharst  v.  Asso- 
ciated Mauufacturers  (1902),  2  K.  B.  660. 


SECT,   n.]  SMELTING   CO.    V.   BELDEN   MINING   CO.  453 

least  fifty  tons  a  da}-,  beginning  upon  the  completion  of  a  railroad  from 
Leadville  to  Red  Cliff,  and  continuing  until  the  whole  should  have  been 
delivered,  and  that  "all  ore  so  delivered  shall  at  once  upon  the  de- 
livery thereof  become  the  property  of  the  second  party  ; "  and  it  was 
further  agreed  as  follows  :  — 

"  The  value  of  said  ore  and  the  price  to  be  paid  therefor  shall  be 
fixed  in  lots  of  about  one  hundred  tons  each ;  that  is  to  say,  as  soon  as 
such  a  lot  of  ore  shall  have  been  delivered  to  said  second  party,  it  shall 
be  sampled  at  the  works  of  said  second  party,  and  the  sample  assayed 
by  either  or  both  of  the  parties  hei'eto,  and  the  value  of  such  lots  of  ore 
shall  be  fixed  by  such  assay ;  in  case  the  parties  hereto  cannot  agree  as 
to  such  assay,  they  shall  agree  upon  some  third  disinterested  and 
competent  party,  whose  assay  shall  be  final.  The  price  to  be  paid  b}- 
said  second  party  for  such  lot  of  ore  shall  be  fixed,  on  the  basis  herein- 
after agreed  upon,  b}'  the  closing  New  York  quotations  for  silver  and 
common  lead  on  the  day  of  the  delivery  of  sample  bottle,  and  so  on 
until  all  of  said  ore  shall  have  been  delivered. 

"  Said  second  party  shall  pa}*  said  first  party  at  said  Leadville  for 
each  such  lot  of  ore  at  once,  upon  the  determination  of  its  assay  value, 
at  the  following  prices,"  specifying,  by  reference  to  the  New  York 
quotations,  the  price  to  be  paid  per  pound  for  the  lead  contained  in  the 
ore,  and  the  price  to  be  paid  for  the  silver  contained  in  each  ton  of  ore, 
varying  according  to  the  proportions  of  silica  and  of  iron  in  the  ore. 

The  complaint  further  alleged  that  the  railroad  was  completed  on 
November  30,  1881,  and  thereupon  the  defendant,  under  and  in  com- 
pliance with  the  contract,  began  to  deliver  ore  to  Billing  and  Jailers  at 
their  smelting  works,  and  delivered  167  tons  between  that  date  and 
January  1,  1882,  when  "  the_.said_firm  of  Billing  and  Eilers  was  dis- 
solved, and  the  said  contract  and  the  business  of  said  fixm,  and  the 
smelting  works  at  which  said  ores  were  to  be  delivered,  were  sold, 
as^signed,  and  transferred  to  G.  Billing,  whereof  the  defendant  had  due 
notice  ;  "  that  after  such  transfen^and  assignment  the  defendant  con- 


Inued  to  deliver  ore  under  the  contract,  and  between  January  1  and 
April  21,  1882,  delivered  to  Billing  at  said  smelting  works  894  tons; 
that  on  May  1,  1882,  the  contract,  together  with  the  smelting  works, 
was  sold  and  conveyed  by  Billing  to  the  plaintiff,  whereof  the  defendant 
had  due  notice  ;  that  the  defendant  then  ceased  to  deliver  ore  under  the 
contract,  and  afterwards  refused  to  perform  the  contract,  and  gave 
notice  to  the  plaintiff  that_it  considered  the  contract  cancelled  and. 
annulled  ;  that  all  the  ore  so  delivered  under  the  contract  was  paid  for, 
according  to  its  terms  ;  that  "  ^e  plaintiff  and  its  said  assignors  were 
at  all  times  during  their  respectiv^'^cmiierships  read}-,  able,  and  willing 
to  pay  on  the  like  terms  for  each  lot  as  delivered,  when  and  as  the  de- 
lend  ajvt_s  ho  u  Id  deliver  the  same,  according  to  the  terms  of  said  contract^ 
and  the  time  of  payment  was  fixed  on  the  day  of  deliverv  of  the 
'  sample  bottle,'  by  which  expression  was,  b}-  the  custom  of  the  trade 
intended  the  completion  of  the  assay  or  test  by  which  the  value  of  the 


45i  SMELTIKG   CO.    V.    BELDEN   iMINING   CO.       [CHAP.    III. 

ore  was  defiiiitel}"  fixed  ; "  and  that  "  the  said  Billing  and  Eilers,  and 
the  said  G.  Billing,  their  successor  and  assignee,  at  all  times  since  the 
delivery  of  said  contract,  and  during  the  respective  periods  when  it  was 
held  b}"  them  respectively,  were  able,  ready,  and  willing  to  and  did 
comply  with  and  perlbrni  all  the  terms  of  the  same,  so  far  as  they  were 
by  said  contract  required  ;  and  the  said  plaintiff  has  been  at  all  times 
able,  ready,  and  willing  to  perform  and  comply  with  the  terms  thereof, 
and  has  from  time  to  time,  since  the  said  contract  was  assigned  to  it, 
so  notified  the  defendant." 

The  defendant  demurred  to  the  complaint  for  various  reasons,  one  of 
which  was  that  the  contract  therein  set  forth  could  not  be  assigned, 
but  was  personal  in  its  nature,  and  could  not.  by  the  pretended  assign- 
ment thereof  to  the  plaintiff,  vest  the  plaintiff  with  anj'  power  to  sue 
the  defendant  for  the  alleged  breach  of  contract. 

The  Circuit  Court  sustained  the  demurrer,  and  gave  judgment  for 
the  defendant ;  and  the  plaintiff  sued  out  this  writ  of  error. 

Mr.  jR.  S.  3IorHson,  Mr.  T,  31.  Patterson^  and  Mr.  C.  S.  Thomas 
for  plaintiff  in  error. 

This  is  an  executory  contract,  y he  rule  as  to  the  assignabilit-v  of 
sucli  instrument^ js  that  ajl_ contrac^may  be,fssi|a;np^^eit^^^r  bofore  or 
after  the"breach7wbich~w^re^nor"e^^  i"^'^  "pf^a  the  one  side  or  the 
other  upon  the  basis  of  a  personal  trust  in  the  peculiar  fitness  of  the 
other  partyjo  perform  his  part.  The  illustration  so  often  used  is  that 
ofan  author  to  write  a  book  ;  or  an  artist  to  paint  a  picture  ;  neither  of 
which  can  be  assigned  on  the  part  of  the  person"  wht)se  genius  is  de- 
pended upon.  But  an  agreement  to  paj-  $1000  for  a  valuable  consider- 
ation, or  to  deliver  ten  tons  of  coal  at  so  much  per  ton,  cannot  belong 
to  this  class  of  cases,  as  in  either  instance  it  can  make  no  difference  to 
either  party  who  executes  the  other  part  of  the  contract.  Where  taste, 
skill,  or  genius  is  one  of  the  elements  relied  upon  the  contract  cannoj: 
t)e  assigned  :  whereit  is  onl}'  a  question  of  so  much  lost  or  so  much 
gained,  whoever^peHprmsTEe^ntract^it  may  be  assigned.^ 

To  which  class  does  the  contract  in  the  case  at  bar  belong  ?  Reduced 
to  its  elements  tUg_ contract  amounts  to  no  more  than  an  agreement  oq . 
the  one  side  to  sell  ten  thouaand  tonsjiLerCj  and  on  the  other  to  receive^ 
and  pay  for  the  same.  It  makes  no  difference  to  the  one  party  who 
gives  him  the  ore,  nor  to  the  other  who  pays  him  the  price ;  all  that 
both  parties  want  is  what  they  have  contracted  to  get.  No  peculiar 
fitness  on  either  side  is  needed  to  fulfil  the  contract,  and,  in  pojnt  of 
fact,  the  contract  is  one  which  from  its  very  nature  has  to  be  performjg^ 
largely  through  the  medium  of  agents.  The  contract  is  no  more  nor 
less  than  an  article  of  property  to  each  party,  and  the  policy  of  the  law 
is  to  let  such  articles  of  property  pass  from  hand  to  hand  with  as  much 
freedom  as  is  requisite  to  make  them  valuable. 

While  all  the  cases  lay  down  the  rule  as  we  have  above  stated,  the 
New  York  Court  of  Appeals,  in  Devlin  v.  Mayor,  63  N.  Y.  8,  16,  has 
given  us  a  criterion  by  which  we  can  the  more  readily  bring  the  present 


SECT.   II.]         SMELTING   CO.   V.   BELDEN   MINING   CO.  455 

case  within  the  terras  of  the  rule.  This,  criterion  is,  that  whatever 
6oiitracts_  are  binding  upon  the  executors  or  administrators  may  be 
assigned,  while  those  that  die  with  the  person  cannot  be  assigned. 
While  it  is  true  that  in  both  instances  we  must  go  back  to  the  principle 
of  personal  skill,  taste,  or  genius,  as  the  real  test,  the  fact  that  this  has 
been  the  test  so  far  as  executors  and  administrators  are  concerned  for 
centuries  of  the  common  law,  will  make  it  much  easier  to  apply  in  the 
matter  of  the  assignabilit}-  of  contracts.  So  that  all  the  cases  deciding 
the  question  of  the  liabilitN'  or  rights  of  the  executor  or  administrator 
upon  executor}'  contracts  of  the  decedent,  can  be  quoted  as  applicable 
to  the  question  of  the  assignability  of  contracts. 

Adopting  tlie  law  as  laid  down  in  that  case,  we  call  the  attention  of 
the  court  first  to  those  cases  in  which  the  courts  have  applied  the  rule 
to  executors  and  administrators,  and  then  to  the  assignment  of  execu- 
tory contracts. 

The  general  rule  as  to  executors  was  stated  by  the  Queen's  Bench  in 
time  of  Queen  Elizabeth  to  be  that  "  a  covenant  lies  against  an  ex- 
eciitor  in  every  case,  although  he  be  not  named;  unless  it  be  such  a 
covenant  as  is  to  be  performed  by  the  person  of  the  testator  which 
they  c;iniiot  perform."  Hj'de  v.  Dean  and  Canons  of  Windsor,  Cro. 
Eliz.  553. 

Lord  Coke,  a  few  years  later,  in  the  case  of  Quick  v.  Ludborrow,  3 
Bulstr.  29,  30,  states  the  rule  to  be  the  same,  and  says  that  if  one  is 
bound  to  build  a  house  for  another  before  such  a  time  and  dies,  his 
executors  are  bound  to  perform  the  contract.  While  this  was  a  dictum 
so  far  as  that  case  was  concerned,  it  is  valuable  as  an  illustration  of 
how  ancient  the  principle  we  are  contending  for  is,  and  it  is  also  valuable 
in  that  the  great  Chief  Justice  goes  back  yet  further  for  his  authority, 
citing  to  support  it  the  Year  Books  31  H.  VI.  and  15  H.  VII. 

Lord  Mansfield  has  also  given  us  a  clear  statement  of  the  law  in 
delivering  the  unanimous  judgment  of  the  King's  Bench,  and  in  accord 
with  the  view  contended  for.     Hambly  v.  Trott,  Cowp.  371. 

The  Barons  of  the  Exchequer  iiave  affirmed  the  dictum  of  Lord  Coke 
by  deciding  that  where  the  testator  had  contracted  to  build  a  wooden 
galley  and  died  before  an}-  of  the  work  was  done,  and  his  executors 
had  gone  on  and  completed  the  work,  the  executors  might  sue  on  the 
contract  and  recover,  —  Lord  Lyndhurst  putting  his  decision  on  the 
ground  of  the  difference  between  contracts  personal  in  their  natureand 
those  that  are  not.  3Iarshall  v.  Broadhurst,  1  Tyrwh.  348  ;  s.  c.  1  Cr. 
&  Jer.  403.  Sec  also,  Siboni  v.  Kirkman,  1  M.  &  W.  417;  s.  c.  4  M. 
&  W.  339  ;  Wentworth  v.  Cock,  10  Ad.  &  El.  42  ;  Walker  v.  Hall,  2 
Levinz,  177  ;  Hyde  v.  Skinner,  2  P.  Wms.  196  ;  Berisford  v.  Woodruff, 
Croke  Jac.  404. 

A  rule  so  unanimously  declai-ed  to  be  a  maxim  of  the  common  law 
has  never  been  doubted  by  the  American  courts.  Petrie  v.  Vorhees, 
18  N.  J.  Eq.,  3  C.  E.  Green,  285;  Woods  v.  Ridley,  27  Miss.  119; 
Pringle  v.  McPherson,  2  Desaussure,  524 ;  White  v.  Commonwealth, 
39  Penn.  St.  167. 


456  SMELTING   CO.    V.    BELDEN   MINING   CO.       [CHAP.    IH. 

A  somewhat  length}'  examination  of  the  rule  and  the  cases  was  made 
b}'  the  Supreme  Court  of  Pennsylvania  in  one  case,  and  while  the  view 
taken  of  some  of  the  EngUsh  cases  is  not  in  accord  with  ours  the  prin- 
ciples are,  on  the  whole,  the  same  ;  and  it  seems  to  acknowledge  the 
rule  applied  in  New  York  as  to  assignabilit}-.  Dickinson  v.  Calahan, 
19  Penn.  St.  227. 

If  we  admit  the  rule  laid  down  in  New  York  it  does  not  seem  possible 
to  prevent  the  case  at  bar  from  being  brought  within  the  above  deci- 
sions and  the  contract  held  to  be  not  personal.  But  we  are  not  forced 
to  reh'  upon  these  cases,  as  there  have  been  enough  adjudications  upon 
the  exact  doctrine  of  the  assignability  of  contracts  to  bring  this  case 
far  within  the  limits  laid  down,  and  to  settle  beyond  controversy  the 
question  of  the  assignability  of  this  contract. 

The  English  courts  have  not  in  terms  announced  the  doctrine  stated 
in  New  York ;  but  they  have,  by  applying  the  same  principles  to  both 
personal  representatives  and  assignees,  made  it  practicall}'  the  same. 
The  fundamental  principle  of  personal  and  non-personal  contracts  runs 
through  all  the  cases.  Robson  v.  Drummoncl,  2  B.  &^  Ad.  303  ;  Went- 
worth  V.  Cock,  supra ;  British  Waggon  Co.  v.  Lea,  5  Q.  B.  D.  149. 

The  American  authorities  are,  if  it  were  possible,  much  stronger 
upon  the  side  of  assignability  than  are  the  English.  No  State  has 
rendered  a  greater  number  of  decisions,  and  all  to  the  same  end,  on 
this  question  than  New  York  ;  and,  in  view  of  her  great  commercial 
power,  no  State  should  be  listened  to  with  more  respect.  Devlin  v. 
Ma^'or,  supra;  Sears  v.  Conover,  3  Ke^-es,  113;  Tyler  y.  Barrows, 
6  Robertson  (N.  Y.)  104  ;  Horner  v.  Wood,  23  N.  Y.  350.  See  also,  la 
the  reports  of  other  States,  Ta3-lor  v.  Palmer,  31  Cal.  240;  Parsons  v. 
Woodward,  22  N.  J.  L.  (2  Zabriskie)  196  ;  Philadelphia  v.  Lockhardt, 
73  Penn.  St.  211;  Latferty  v.  Rutherford,  5  Ark.  453;  St.  Louis  v. 
Clemens,  42  Mo.  69 ;  Groot  v.  Story,  41  Vt.  533. 

The  reports  show  us  man}-  cases  in  which  contracts  have  been  held 
to  be  personal  and  not  assignable  ;  but  the  majority  are  clearly  on  the 
other  side  of  the  line.     Only  two  or  three  need  any  special  mention. 

Boston  Ice  Co.  v.  Potter,  123  Mass.  28,  may  seem  at  first  view  to  be 
against  our  position  ;  but  on  examination  it  will  be  found  the  other 
way.  The  opinion  of  Mr.  Justice  Endicott  clearly  states  the  rule,  and 
bases  the  decision  in  the  case  upon  the  particular  facts  disclosed. 

Lansden  v.  McCarthy,  45  Mo.  106,  in  view  of  the  facts  then  exist- 
ing, might  also  be  cited  as  against  the  contract  in  the  present  case. 
The  court  admit  the  general  principle  and  decide  that  the  contract 
there  sued  upon  is  personal.  We  cannot  but  believe  that  if  the  appli- 
cation there  can  be  construed  as  against  the  contract  at  bar,  the  court 
erred  in  its  judgment.  The  personal  nature  of  the  contract  was  held  to 
consist  in  the  fact  that  one  party  had  relied  upon  the  credit  and  ability 
of  the  other  party  to  pay  the  price  named.  Such  a  view,  if  accepted, 
would  do  much  to  put  an  end  to  the  assignability  of  all  contracts  and 
choses  in  action  ;  for  all  contracts  are  entered  into  with  the  belief  that 


SECT.    II.]         SMELTING   CO.    V.    BELDEN   MINING   CO.  457 

the  other  party  will  perforin  his  part.     And  the  court,  too,  seems  to 
forget  that  the  liability  of  the  original  parties  remains  the  same,  not-' 
withstanding  the  assignment,  and  the  contracting  party  may  hold  both 
assignor  and  assignee. 

Dickinson  v.  Calahan,  19  Penn.  St.  227,  criticises  some  of  the  Eng- 
lish cases  cited  by  us  ;  but,  we  believe,  the}-  are  clearly  in  the  line  of 
all  the  common  law  authorities,  and  they  have  been  expressly  adopted 
in  terms  by  the  Court  of  Appeals  of  New  York  in  Devlin  r.  Ma^-or, 
63  N.  Y.  8. 

This  citation  of  authority  will,  we  think,  convince  the  court  of  the 
correctness  of  our  position  as  to  the  assignabilit}'  of  this  contract. 
Nothing  more  can  be  made  out  of  the  transaction  than  a  contract  of 
sale.  Billing  and  Eilers  purchased  the  right  to  so  many  tons  of  ore ; 
the  Belden  Mining  Company  purchased  the  right  to  so  man}'  dollars  per 
ton  for  a  certain  number  of  tons  of  its  ore.  Neither  part}'  secured  any 
title  or  right  of  property  in  the  taste,  skill,  or  genius  of  the  other  party, 
but  simply  a  title  to  a  definite,  tangible,  merchantable  article  that  was 
readily  capable  of  passing  from  hand  to  hand.  Every  element  of  the 
contract  partakes  of  the  purely  mercantile  transaction,  and  the  attempt 
to  place  it  in  the  category  of  those  contracts  that  depend  upon  personal 
skill,  taste,  or  genius,  seems  to  us  an  absurdity.  No  one  can  doubt 
the  right  of  Billing  and  Eilers  to  sell  the  ore  after  they  had  received  it 
from  the  mining  company,  and  for  what  reason  should  they  be  denied 
the  right  of  selling  it  before  they  received  it?  The  ore  itself  was  cer- 
tainly capable  of  being  sold,  and  the  right  to  the  ore  would  seem  to  be 
an  equal  object  of  barter. 

There  is  another  principle  upon  which  we  rely,  and  whicn  we  think  is 
conclusive  of  the  present  case.  It  is  maintained  that  whether  or  not 
this  contract  is  assignable,  the  defendant  cannot  now  deny  it  the  quality 
of  assignability.  The  contract  has  been  assigned  twice,  and,  as  under 
the  first  assignment  the  defendant  made  no  objection,  but  dispensed 
wjth  whatever  riglits  it  had,  it  is  now  estopped  from  denying  to  the 
first  assignee  the  same  right  that  it  gave  toins^assrgndr.  ~  If  the  con- 
tract was  not  assignable  in  the  first  place,  the  implied  condition  arising 
from  this  fact  was  that  upon  assignment  by  either  party  the  other  had 
a  right  to  treat  the  contract  as  at  an  end  ;  but  once  waived,  the  con- 
dition was  gone  and  could  no  more  be  insisted  upon.  This  is  a  prin- 
ciple so  old  and  well  grounded  in  the  common  law  as  to  require  little  or 
no  authority  for  its  support.  It  has  been  frequently  applied  to  cases 
where  the  contract  in  express  terms  provided  against  assignment,  and 
declared  that  if  assigned  the  contract  should  be  at  an  end  ;  and  surely 
it  will  be  applied  to  a  case  where  the  same  thing  was  implied.  And  it 
would  seem  to  us  that  the  court  would  be  readier  to  apply  the  principle 
in  doubtful  cases  than  where  it  was  expressly  provided  for.  If  the 
contract  is  claimed  to  be  personal  by  one  party  and  not  personal  by  the 
other,  and  the  court  is  to  determine  the  question  b}'  reference  to  the  in- 
tention of  the  parties,  it  is  surely  competent  for  it  to  look  at  the  treat- 


458  SMELTING    CO.    V.    BELDEN   MINING   CO.       [CHAP.   in. 

ment  of  the  contract  b}-  the  parties.  If  the  part}"  who  claims  that  the 
contract  is  personal  has  treated  it  as  not  personal,  this  should  be 
conclusive  evidence  that  at  the  time  it  was  entered  into  it  was  the 
intention  of  the  parties  that  the  contract  should  not  be  considered  as 
personal.  The  present  case,  it  seems  to  us,  is  brought  clearlj'  within 
the  spirit  and  letter  of  this  ruled  law.  Murray  v.  Harwa^',  56  N.  Y. 
337. 

No  appearance  for  defendant  in  error. 

Mr.  Justice  Gray,  after  stating  the  case  as  above  reported,  delivered 
the  opinion  of  the  court. 

If  the  assignment  to  the  plaintiff  of  the  contract  sued  on  was  valid, 
the  plaintiff  is  the  real  part}'  in  interest,  and  as  such  entitled,  under 
the  practice  in  Colorado,  to  maintain  this  action  in  his  own  name.  Rev. 
Stat.  §  914  ;  Colorado  Code  of  Civil  Procedure,  §  3  ;  Albany-  &  Rensse- 
lear  Co.  v.  Lundberg,  121  U.  S.  451.  The  vital  question  in  the  casei__ 
therefore,  is  whether  the  contract  between  the  defendant  and  Billing_ 
and  Eilers  was  assignable  by  the  latter,  under  the  circumstances  stated 
in  the  complaint. 

At  the  present  day,  no  doubt,  an  agreement  to  pay  money,  or  to 
deliver  goods,  may  be  assigned  by  the  person  to  whom  the  money  is  to 
be  paid  or  the  goods  are  to  be  delivered,  if  there  is  nothing  in  the  terms 
of  the  contract,  whether  by  requiring  something  to  be  afterwards  done 
hy  him,  or  by  some  other  stipulation,  which  manifests  the  intention  of 
the  parties  that  it  shall  not  be  assignable. 

But  every  one  has  a  right  to  select  and  determine  with  whom  he  will 
contract,  and  cannot  have  another  person  thrust  upon  him  without  his 
consent.  In  the  familiar  phrase  of  Lord  Denman,  "  You  have  a  right__ 
to  the  benefit  you  anticipate  from  tlie  character,  credit,  and  substance 
of  the  party  with  wliom  you  contract."  Humble  v.  Hunter,  12  Q.  B. 
310,  317;  Winchester  r.  Howard,  97  Mass.  303,  305  ;  Boston  Ice  Co.  v. 
Potter,  123  Mass.  '2S. ;  King  v.  Batterson,  13  R.  I.  117,  120;  Lansden 
V.  McCarthy,  45  Mo.  106.     The  rule  upon  this  subject,  as  applicable  to 

the  case  at  bar,  is  well  expressed  in  a  recent  English  treatise.    "  Rights 

arising  out  of  contract  cannot  be  transferred  if  they  are  coupled  with 
liabilities,  or  if  they  involve  a  relation  of  personal  confidence  such  that 
the  party  whose  agreement  conferred  those  rights  must  have  intended 
them  to  be  exercised  only  by  him  in  whom  he  actually  confided." 
Pollock  on  Contracts  (4th  ed.)  425. 

The  contract  here  sued  on  was  one  by  which  the  defendant  agreed  to 
deliver  ten  thousand  tons  of  lead  ore  from  its  mines  to  Billing  and 
Eilers  at  their  smelting  works.  The  ore  was  to  be  delivered  at  the  rate 
of  fifty  tons  a  day,  and  it  was  expressly  agreed  that  it  should  become 
the  propert}'  of  Billing  and  Eilers  as  soon  as  delivered.  The  price  was 
not  fixed  by  the  contract,  or  payable  upon  the  delivery  of  the  ore. 
But,  as  often  as  a  hundred  tons  of  ore  had  been  delivered,  the  ore  was 
to  be  assayed  by  the  parties  or  one  of  them,  and,  if  they  could  not 
agree,  hx  an  umpire  ;  and  it  was  only  after  all  this  had  been  done,  and 


SECT.    II.]  SMELTING   CO.    V.   BELDEX   MINING   CO.  459 

according  to  the  result  of  the  assay,  and  the  proportions  of  lead,  silver, 
silica,  and  iron,  thereby  proved  to  be  in  the  ore,  that  the  price  was  to 
be  ascertained  and  paid.  Daring  the  time  that  must  elapse  between 
the  delivery  of  the  ore,  and  the  ascertainment  and  payment  of  the 
price,  the  defendant  had  no  securit}'  for  its  payment,  except  in  the 
character  and  solvency  of  Billing  and  Eilers.  The  defendant,  there- 
fore, could  not  be  compelled  to  accept  tlie  liability  of  anj'  other  person 
or  corporation  as  a  substitute  for  the  liability  of  those  with  whom  it 
had  contracted. 

The  fact  that  upon  the  dissolution  of  the  firm  of  Billing  and  Eilers, 
and  the  transfer  b};  EUers  to  Billing  of  this  contract,  together  wftFthe 
smelting  works  and  business  of  the  partnership,  the  defendant  continued 
to  deliver  ore  to  Billing  according  to  the  contract,  did  not  oblige  the 
defendant  to  deliver  ore  to  a  stranger,  to  whom  Billing  had  undertaken, 
without  the  defendant's  consent,  to  assign  the  contract.  The  change 
in  a  partnership  by  the  coming  in  or  the  withdrawal  of  a  partner  might 
perhaps  be  held  to  be  within  the  contemplation  of  the  parties  originally 
contracting ;  but,  however  that  may  be,  an  assent  to  such  a  change  in 
the  one  part}'  cannot  estop  the  other  to  deny  the  validitj'  of  a  subse- 
quent assignment  of  the  whole  contract  to  a  stranger.  The  technical 
rule  of  law,  recognized  in  Murray  v.  Harwa}',  56  N.  Y.  337,  cited  for 
the  plaintiff,  by  which  a  lessee's  express  covenant  not  to  assign  has 
been  held  to  be  wholly  determined  by  one  assignment  with  the  lessor's 
consent,  has  no  application  to  this  case. 

The  cause  of  action  set  forth  in  the  complaint  is  not  for  any  failure 
to  deliver  ore  to  Billing  before  his  assignment  to  the  plaintiff  (which 
might  perhaps  be  an  assignable  chose  in  action) ,  but  it  is  for  a  refusal 
to  deliver  ore  to  the  plaintiff  since  this  assignment.  Performance  and 
readiness  to  perform  by  the  plaintiff  and  its  assignors,  during  the 
periods  for  which  they  respectively  held  the  contract,  is  all  that  is 
alleged  ;  there  is  no  allegation  that  Billing  is  read}'  to  pa}'  for  any  ore 
delivered  to  the  plaintiff.  In  short,  the  plaintiff  undertakes  to  step 
into  the  shoes  of  Billing,  and  to  substitute  its  liability  for  his.  The 
defendant  had  a  perfect  right  to  decline  to  assent  to  this,  and  to  refuse 
to  recognize  a  party,  with  whom  it  had  never  contracted,  as  entitled  to 
demand  further  deliveries  of  ore. 

The  cases  cited  in  the  careful  brief  of  the  plaiutiif's  counsel,  as  tend- 
ing to  support  this  action,  are  distinguishable  from  the  case  at  bar, 
and  the  principal  ones  may  be  classified  as  follows  :  — 

First.  -Cases  of  agreements  to  sell  and  deliver  goods  for  a  fixed 
price,  payable  in  cash  on  delivery,  in  which  the  owner  would  receive 
the  price  at  the  time  of  parting  with  his  property,  nothing  further 
would  remain  to  be  done  by  the  purchaser,  and  the  rights  of  the  seller 
could  not  be  affected  by  the  question  whether  the  price  was  paid  by 
the  person  with  whom  he  originally  contracted  or  by  an  assignee. 
Sears  v.  Conover,  3  Keyes,  113,  and  4  4bbott  (N.  Y.  App.)  179  ;  Tyler 
V.  Barrows,  6  Robertson  (N.  Y.),  104. 


460  SIMELTING    CO.    V.    BELDING    MINING   CO.       [CHAP.    UI. 

Second.  Cases  upon  the  question  how  far  executors  succeed  to 
rights  and  liabilities  under  a  contract  of  their  testator.  Hambl}-  v. 
Trott,  Cowper,  371,  375;  Wentworth  v.  Cock,  10  Ad.  &  El.  42,  and 
2  Per.  &  Dav.  251;  Williams  on  Executors  (7th  ed.),  1723-1725. 
Assignment  b}-  operation  of  law,  as  in  the  case  of  an  executor,  is  quite 
different  from  assignment  by  act  of  the  part^- ;  and  the  one  might  be 
held  to  have  been  in  the  contemplation  of  the  parties  to  this  contract 
although  the  other  was  not.  A  lease,  for  instance,  even  if  contain- 
ing an  express  covenant  against  assignment  by  the  lessee,  passes  to 
his  executor.  And  it  is  by  no  means  clear  that  an  executor  would 
be  bound  to  perform,  or  would  be  entitled  to  the  benefit  of,  such 
a  contract  as  that  now  in  question.  Dickinson  v.  Calahan,  19  Penn. 
St.  227. 

Third.  Cases  of  assignments  by  contractors  for  public  works,  in 
which  the  contracts,  and  the  statutes  under  which  they  were  made, 
were  held  to  permit  all  persons  to  bid  for  the  contracts,  and  to  execute 
them  through  third  persons.  Taylor  v.  Palmer,  31  Cal.  240,  247;  St. 
Louis  V.  Clemens,  42  Mo.  G9  ;  Philadelphia  v.  Lockhardt,  73  Penn.  St. 
211 ;  Devlin  v.  New  York,  63  N.  Y.  8. 

Fourth.  Other  cases  of  contracts  assigned  b}-  the  party  who  was  to 
do  certain  work,  not  b}'  the  party  who  was  to  pay  for  it,  and  in  which 
the  question  was  whether  the  work  was  of  such  a  nature  that  it  was 
intended  to  be  performed  by  the  original  contractor  only.  Kobson  v. 
Drummond,  2  B.  &  Ad.  303  ;  British  Waggon  Co.  v.  Lea,  5  Q.  B.  D.  149  ; 
Parsons  v.  Woodward,  2  Zabriskie,  196. 

Without  considering  whether  all  the  cases  cited  were  well  decided,  it 
is  sufficient  to  saj'  that  none  of  them  can  control  the  decision  of  the 
present  case. 

Judgment  affirmed.^ 

1  In  Rochester  Lantern  Company  v.  The  Stiles  and  Parker  Press  Company,  135 
N.  Y.  209,  one  Kelly  had  entered  into  a  contract  with  the  defendant  by  wliich  the 
latter  agreed  to  make  and  deliver  to  the  former,  for  a  specified  price,  certain  dies  to  be 
used  in  the  manufacture  of  lanterns.  Kelly  subsequently,  assigned  the  contract  to  the 
plaintiff  corporation,  which  brought  action  to  recover  damages  for  the  failure  of  the  de- 
fendant to  furnish  the  dies.  Earle,  C.  J.,  in  delivering  the  opinion  of  the  court  said  (at 
p.  216) :  "  After  the  assignment  Kelly  had  no  interest  in  the  contract,  and  the  defend- 
ant owed  him  no  duty  and  could  come  under  no  obligation  to  him  for  damages  on 
account  of  a  breach  of  the  contract  by  it.  There  is  no  doubt  that  Kelly  could  assign 
this  contract  as  he  could  have  assigned  any  other  chose  in  action,  and  by  the  assign- 
ment the  assignee  became  entitled  to  all  the  benefits  of  the  contract.  Devlin  v.  Mayor, 
63  N.  Y.  8.  The  contract  was  not  purely  personal  in  the  sense  that  Kelly  was  bound 
to  perform  in  person,  as  his  only  obligation  was  to  pay  for  the  dies  when  delivered, 
and  that  obligation  could  be  discharged  by  any  one.  He  could  not,  however,  by  the 
assignment  absolve  himself  from  all  obligations  under  the  contract.  The  obligations 
of  the  contract  still  rested  upon  him,  and  resort  could  still  be  made  to  him  for  the  pay- 
ment of  the  dies  in  case  the  assignee  did  not  pay  for  them  when  tendered  to  it.  After 
the  assignment  of  the  contract  to  the  plaintiff  the  defendant's  obligation  to  perform 
still  remained,  and  that  obligation  was  due  to  the  plaintiff."  ISee  further  2  Am.  & 
Eng.  Encyc.  of  Law  (2d  ed.),  1034. 


SECT.    II.]  JAMES   V.   CITY   OF   NEWTON.  461 


EDWARD  B.  JAMES  v.  CITY  OF   NEWTON  and  anothek. 

Supreme  Judicial  Court  of  Massachusetts,  Jan.  25  — 
Sept.  7,  1886. 

[Reported  in  142  Massachusetts,  366.] 

This  was  a  bill  in  equity  brought  by  the  plaintiff  against  the  City  of 
Newton  and  Royal  Gilkey,  assignee  in  insolvency  of  the  estate  of  Wil- 
liam H.  Stewart,  to  enforce  payment  of  $600,  which  had  been  assigned 
to  the  plaintiff  by  Stewart  out  of  mone}'  reserved  as  a  guarant}'  by  the 
Cit}-  of  Newton  for  the  proper  performance  of  a  contract  by  Stewart  to 
build  a  schoolhouse.  The  City  of  Newton  in  its  answer  admitted  that 
it  had  in  its  hands  over  $600,  due  on  account  of  this  contract,  and 
stated  that  it  was  "  willing  to  pa}'  said  balance  to  such  person  or  per- 
sons as  should  be  justly  entitled  to  receive  the  same."  The  defendant 
Gilkey  in  his  answer  claimed  that  the  assignment  was  invalid.* 

C.  C.  Poivers^  for  the  plaintiff. 

W.  S.  Slocum,  for  the  Cit}'  of  Newton. 

W.  B.  Durant,  for  Gilkey. 

Field,  J.  The  assignment  in  this  case  is  a  formal  assignment,  for 
value,  of  "  the  sum  of  six  hundred  dollars  now  due  and  to  become  due 
and  payable  to  me"  from  the  City  of  Newton,  under  and  by  virtue  of 
a  contract  for  building  a  grammar  schoolhouse,  and  it  is  agreed  that 
this  sum  "  shall  be  paid  out  of  the  monej'^  reserved  as  a  guaranty  by 
said  citj',"  and  the  assignee  is  empowered  '*  to  collect  the  same."  Tliere 
J.S  no  doubt  that  il  woukl  operate  as  an  assignment  to  the  extent  of  §600, 
if  there  can  be  an  assignment,  without  the  consent  of  the  debtor,  of  a 
part  of  a  debt  to  become  due  under  an  existing  contract ;  and  the  cases 
that  hold  that  an  order  drawn  on  a  general  or  a  particular  fund  is  not 
an  assignment  pro  tanto,  unless  it  is  accepted  by  the  person  on  whom 
it  is  drawn,  need  not  be  noticed.  That  a  court  of  law  could  not  recog- 
nize and  enforce  such  an  assignment,  except  against  the  assignor  if  the 
money  came  into  his  hands,  is  conceded.  _^TJie  assignee  could  not  sue 
at_  law  in  the  name  of  the  assignor,  because  he  is  not  an  assignee  of 
the^whole  of  the  debt.  He  could  not  sue  at  law  in  his  own  name,  be- 
cause the  City  of  Newton  has  not  promised  him  that  it  will  pay  him 
$600.  The  $600  is  expressly  made  payable  "out  of  the  money  re- 
served as  a  guaranty  b}  said  city  ;  "  and^  by  the  contract,  the  balance 
reserved  was  payable  as  one  entire  sum  ;  _aiid  jit_law.  a  debtor  cannot" 
be  compelled  to  pa\-  an  entire  debt  in  parts,  either  to  the  creditor  or  to 
an  assignee  of  the  creditor,  unless  he  promises  to  do  so.  Courts  of 
law  originally  refused  to  recognize  any  assigmnonts  of  choses  in  action 
made  without  the  assent  of  the  debtor,  Init  Tor  a  long  time  they  have 
recognized  and  enforced  assignments  of  the  whole  of  a  debt,  by  per- 

*  The  statement  of  facts  has  been  much  abbreviated. 


4(3 'J  JAMES    V.    CITY   OF   NEWTON.  [CHAP.    III. 

nntting  the  assignee  to  sue  in  the  name  of  the  assignor,  under  an  im- 
j)lied  power,  wliich  they  hold  to  be  irrevocable.  Partial  assignments 
such  courts  have  never  recognized,  because  they  hold  that  an  entire 
debt  cannot  be  divided  into  parts  b}'  the  creditor  witiiout  the  consent 
of  the  debtor.  It  is  not  wholly  a  question  of  procedure,  although  the 
common  law  procedure  is  not  adapted  to  determining  the  rights  of  dif- 
ferent claimants  to  parts  of  a  fund  or  debt.  The  rule  has  been  estab- 
lished, partially  at  least,  on  the  ground  of  the  entirety  of  the  contract, 
because  it  is  held  that  a  creditor  cannot  sue  his  debtor  for  a  part  of 
an  entire  debt,  and,  if  he  brings  such  an  action  and  recovers  judgment, 
the  judgment  is  a  bar  to  an  action  to  recover  the  remaining  part.  There 
must  be  distinct  promises  in  order  to  maintain  more  than  one  action. 
Warren  v.  Comings,  6  Cush.  103. 

It  is  said  that,  in  equity,  there  may  be,  without  the  consent  of  the  debtor, 
an  assignment  of  a  part  of  an  entire  debt.  It  is  conceded  that,  as  between 
assignor  and  assignee,  there  may  be  such  an  assignment.  The  law  that, 
if  the  debtor  assents  to  the  assignment  in  such  a  manner  as  to  imply  a 
promise  to  the  assignee  to  pay  to  him  the  sum  assigned,  then  the  assignee 
can  maintain  an  action,  rests  upon  the  theor}'  that  the  assignment  has 
transferred  the  propertv  in  the  sum  assigned  to  the  assignee  as  the  con- 
sideration of  the  debtor's  promise  to  pa}'  the  assignee,  and  that  by  this 
promise  the  indebtedness  to  the  assignor  is  pro  tanto  discharged.  It 
has  been  held,  by  courts  of  equity  which  have  hesitated  to  enforce  par- 
tial assignments  against  the  debtor,  that  if  he  brings  a  bill  of  inter- 
pleader against  all  the  persons  claiming  the  debt  or  fund,  or  parts  of 
it,  the  rights  of  the  defendants  will  be  determined  and  enforced,  because 
the  debtor,  although  he  has  not  expressly  promised  to  pay  the  assignees, 
yet  asks  that  the  fund  be  distributed  or  the  debt  paid  to  the  dif- 
ferent defendants  according  to  their  rights  as  between  themselves  ;  and 
the  rule  against  partial  assignments  was  established  for  the  benefit  of 
the  debtor.  Public  Schools  v.  Heath,  2  McCarter,  22  ;  Fourth  National 
Bank  v.  Noonan,  14  Mo.  App.  243. 

In  many  jurisdictions  courts  of  equit}'  have  gone  farther,  and  have 
held  that  an  assignment  of  a  part  of  a  fund  or  debt  may  be  enforced 
irLequity  by  a  bill  brought  by  the  assignee  against  the  debtor  and  as- 
signor while  the  debt  remains  unpaid.  The  procedure  in  equity  is 
adapted  to  determining  and  enforcing  all  the  rights  of  the  parties,  and 
the  debtor  can  pay  the  fund  or  debt  into  court,  have  his  costs  if  he  is 
entitled  to  them,  and  thus  be  compensated  for  any  expense  or  trouble 
to  which  he  may  have  been  put  by  the  assignment.  But  some  courts, 
of  equity  have  gone  still  farther,  and  have  held  that,  after  notice  of^ 
partial  assignment  of  a  debt,  the  debtor  cannot  rightfully  pay  the  suin_ 
assigned  to  his  creditor,  and,  if  he  does,  that  this  is  no  defence  to  a 
bill  bv  the  assignee.  The  doctrine  carried  to  this  extent  effects  a  sub- 
stantial change  in  the  law.  Under  the  old  rule,  the  debtor  could  with 
safety  settle  with  his  creditor  and  pay  him,  unless  he  had  notice  or 
knowledge  of  an  assignment  of  the  whole  of  the  debt ;  under  this  rule,  he 
cai'not,  if  he  have  notice  or  knowledge  of  an  assignment  of  any  part  of  it. 


SECT.   II.]  JAMES    V.    CITY   OF   NEWTON.  463 

It  ma^'  be  argued  that,  if  a  bill  in  equity  can  be  maintained  against 
the  debtor  by  an  assignee  of  a  part  of  the  debt,  it  must  be  on  the 
ground,  not  only  that  the  plaintiff  has  a  right  of  property  in  the  sum 
assigned,  but  also  that  it  is  the  debtor's  duty  to  pay  the  sum  assigned 
to  the  assignee ;  and  that,  if  this  is  so,  it  follows  that,  after  notice  oi 
the  assignment,  the  debtor  cauiiot  rightfully  pay  the  sum  assigned  to 
the  assignor. 

The  tacts  of  this  case,  however,  do  not  require  us  to  decide  whether 
a  bill  can  be  maintained  after  the  debtor  has  paid  the  entire  debt  to 
his  creditor,  although  after  notice  of  a  partial  assignment.  The  City 
of  Newton,  in  its  answer,  says  that  it  ^Ms  willing  to  pay.,said  balance 
*;o  such  person  or  persons  as  should  be  justly  entitled  to  receive  the 
aame,  whether  said  plaintiff,  or  said  Gilkej^  as  such  assignee;"  and 
praj-s  "  that  said  plaintiff  and  said  Gilkey  may  interplead,  and  settle 
and  adjust  their  demands  between  themselves,  and  that  the  court  shall 
order  and  decree  to  whom  said  sum  shall  be  paid."  This  is  in  effect 
asking  the  aid  of  the  court  in  much  the  same  manner  as  if  the  City  of 
Newton  had  brought  a  bill  of  interpleader ;  and  the  proceedings  are 
not  open  to  the  objection  that  the  court  is  compelling  the  Cit}'  of  New- 
ton to  assent  to  an  assignment  against  its  will. 

This  is  the  first  bill  in  equity  to  enforce  a  partial  assignment  of  a 
debt  which   has  been   before   this   court.     It  has  been  often  declared  il  JX./r- 
here  that  there  cannot  be  an  assignment  of  a  part  of  an  entire  debt        ,1^ 
without  the  assent  of  the  debtor ;   but  the  cases  are  all  actions  at  law,   '  "     . 
and  in  the  majority  of  them  the  statement  was  not  necessary  to  the      ^^^^ 
decision. 

In  Tripp  v.  Brownell,  12  Cush.  376,  381,  the  action  was  assumitsit, 
to  recover  the  amount  of  the  plaintiff's  lay  as  a  mariner  on  a  whaling 
voyage.  The  defence  was  an  assignment  of  the  balance  due,  made  by 
the  plaintiff  and  accepted  bj'  the  defendant.  This  was  held  a  good  de- 
fence, the  court  saying:  ''  It  is  in  terms  an  assignment  of  the  whole 
layj  it  must  be  so  by  uperaliou  of  kiw,  It  is  not  competent  for  a  f rpHi- 
tor  to  assign  part  of  the  debt,  so  as  to  give  any  equitable  interest  in 
part  of  the  debt,  or  create  any  lien  upon  it.  The  debtor,  or  holder 
of  the  assiguablL;  interest,  cannot,  without  his  ojm„CQiiS.eiit»..be^Jiekl 
le}j:allv  or  euuitablY  liable  to  au._assioLn_e_e  for  part,  and  to  the  original 
credltQr<  or  g.not.heiL.,assignee  for  another  pa,rt.  Mandeville  v.  Welch, 
6  Wheat.  '277 ;  Gibson  v.  Cooke,  20  Pick.  15  ;  Robbins  v.  Bacon,  3 
Greenl.  346." 

Gibson  v.  Cooke,  ubi  supra,  was  assumpsit,  brought  in  the  name  of 
Gorhara  Gibson  for  the  benefit  of  one  Plympton,  to  whom  Gibson  had 
given  an  order  on  the  defendant  to  pay  Plympton  $175.33  "  as  m}'  in- 
come becomes  due."  The  defendant  held  property  in  trust  to  pa}*  over 
the  "  net  proceeds  once  a  quarter"  to  Gibson  and  others.  The  court 
held  that  it  did  not  appear  that,  "  at  the  time  of  the  assignment,  or 
at  any  period  since,  the  whole  amount  due  to  Gorham  Gibson  would 
correspond  with  the  amount  of  the  draft,"  and  that  ".a^debto;-  is  not 


464  JAMES   V.    CITY   OF    NEWTON.  [CHAP.    IIT. 

to  have  his  responsibilities  so  far  varied  from  the  terms  of  h^s  orginal 
contract  as  to  subject  him  to  distinct  demands  on  the  part  of  several 
persons,  when  his  contract  was  one  and  entire." 

Knowlton  v.  Cooley,  102  Mass.  233,  was  a  trustee  process,  and  the 
trustee  had  in  his  hands  $147  due  the  defendant  as  wages,  and  the 
claimant  held  an  order,  given  by  the  defendant  before  the  wages  were 
earned,  for  the  payment  to  him  of  the  defendant's  wages,  "  as  fast  as 
they  became  due,  to  the  amount  of  $150,"  which  the  trustee  had  ac- 
cepted. The  court  held  that  the  order  was  an  assignment  of  wages, 
and  not  having  been  recorded,  was  invalid  against  a  trustee  process  by 
the  St.  of  1865,  c.  43,  s.  2.  The  court  say:  "  The  acceptance  of  the 
order  by  Barton  [the  trustee]  does  not  change  its  character.  His  as- 
sent was  necessar}'  to  give  it  any  validity  even  as  an  assignment. 
Gibson  v.  Cooke,  20  Pick.  15." 

Papineau  v.  Naumkeag  Steam  Cotton  Co.,  126  Mass.  372,  was  an 
action  of  contract,  and  the  court  say  :  "  The  order  of  Couillard  on  the 
defendant,  in  favor  of  the  plaintiff,  was  not  an  order  for  payment  of  all 
that  should  be  due  the  drawer  as  wages  at  the  several  times  when  the 
instalments  were  to  be  paid.  It  was  not,  therefore,  an  assignment  of 
wages  to  the  plaintiff,  unless  the  defendant  saw  fit  to  assent  to  it  as 
such,  but  a  mere  order  for  money." 

It  is  settled  that  an  assignment  of  a  part  of  a  debt,  if  assented 
to  b}'  the  debtor  in  such  a  manner  as  to  imply  a  promise  to  pay 
it  to  the  assignee,  is  good  against  a  trustee  process,  or  against  ajx — 
'  assigiiee^in  msolvency.  Taylor  v.  Lynch,  5  Gray,  49  ;  Lannan  v.  Smith, 
7  Gray,  150.  In  Bourne  v.  Cabot,  3  Met.  305,  the  court  say,  "  The 
order  of  Litchfield  on  the  defendant  was  a  good  assignment  of  the  fund, 
pro  tanto,  to  the  plaintiff,  and  the  express  promise  to  the  assignee,  to 
pay  him  the  balance  when  the  vessel  should  be  sold,  constituted  a  legal 
contract." 

It  is  also  settled  that  an  equitable  assignment  of  the  whole  fund  in 
the  hands  of  the  trustee  is  good  against  a  trustee  process,  although  the 
trustee  has  received  no  notice  of  the  assignment  until  after  the  trustee 
process  is  served,  and  has  never  assented  to  it.  Wakefield  v.  Martin, 
3  Mass.  558  ;  Kingman  v.  Perkins,  105  Mass.  Ill  ;  Norton  v.  Piscata- 
qua  Ins.  Co.,  Ill  Mass.  532;  Taft  v.  Bowker,  132  Mass.  277;  Wil- 
liams V.  Ingersoll,  89  N.  Y.  508. 

Before,  as  well  as  since,  the  St.  of  1865,  c.  43,  s.  1  (Pub.  Sts.  c.  183, 
s.  38),  if  the  assignment  was  for  collateral  securit}-,  and  the  assignee 
was  bound  to  pay  immediately  to  the  assignor,  out  of  the  sum  assigned, 
an}'  balance  remaining  after  paj'ment  of  his  debt,  it  has  been  held  that 
the  excess  above  the  debt  for  which  the  assignment  is  security  is  at- 
tachable by  the  trustee  process.  Macomber  v.  Doane,  2  Allen,  541  ; 
Darling  v.  Andrews,  9  Allen,  106  ;  Warren  v.  Sullivan,  123  Mass.  283  ; 
Giles  V.  Ash,  123  Mass.  353.     See  Lannan  v.  Smith,  tibi  supra. 

In  Macomber  v.  Doane,  ubi  supra,  the  court  sa}' :  "  An  order  consti- 
tiitcs  a  good  form  of  assignment,  it  being  for  the  whole  sum  due  or  be- 


SECT.    n.J  JAMES    V.   CITY   OF   NEWTON.  465 

coming  due  to  the  drawer,  and  it  needs  not  be  accepted  to  make  it  ap 
assignment."  The  order  was  for  one  month's  wages,  which,  as  subse-* 
quently  ascertained,  amounted  to  $37.50,  but  it  was  given  as  security 
for  groceries  furnished  and  to  be  furnished,  and,  on  the  day  of  the  ser- 
vice of  the  writ,  the  defendant  owed  the  plaintiff  for  groceries  $28.79, 
and  the  remaining  $8.71  was  held  by  the  trustee  process. 

Some  of  these  cases  were  noticed  in  "Whitney  v.  Eliot  National  Bank, 
137  Mass.  351,  and  the  court  then  declined  to  decide  "whether  in 
equity  there  may  not  be  an  assignment  of  a  part  of  a  debt." 

Without  considering  the  cases  upon  the  effect  of  orders  or  drafts  for 
money,  ^s  constituting  assignments  of  the  debt  or  of  a  part  of  it,  it 
sieems  never  to  have  been  decided  in  this  Commonwealth  that  an  as- 
signment for  value  of  a  part  of  an  entire  debt  is  not  good,  to  the  extent 
of  the  assignment,  against  trustee  process.  In  trustee  process,  the 
trustee  of  the  defendant,  if  charged,  is  by  the  statute  compelled  to  pay 
to  the  plaintiff  so  much  of  what  he  admits  to  be  due  to  the  defendant  as 
is  necessary  to  satisfj'  the  plaintiff's  judgment;  and,  as  an  entire  debt 
ma}'  thus  be  divided,  it  seems  equitable  that  an  assignee  of  a  part  of 
the  debt  should  be  admitted  as  a  claimant,  and  this  is  in  effect  done 
when  the  assignment  is  as  collateral  security. 

Palmer  v.  Merrill,  6  Cush.  282,  was  assumpsit  against  the  administra- 
tor of  Spaulding,  who  had  caused  his  life  to  be  insured  by  a  polic}'  pay- 
able to  himself,  his  executors,  admmistrators,  or  assigns ;  and  he,  by  a 
memorandum  in  writing  indorsed  on  the  policy,  for  a  valuable  consider- 
ation, assigned  and  requested  the  insurer  to  pay  the  plaintiff  the  sum 
of  $400,  part  of  the  sum  insured  by  the  policy,  in  case  of  loss  on  the 
same,  of  which  assignment  and  request  the  insurers  on  the  same  day 
had  due  notice.  Tlie  policy,  with  this  indorsement  thereon,  remained 
in  the  custody'  of  Spaulding  until  his  decease,  and  came  into  the  hands 
of  the  administrator  of  his  estate,  who  collected  the  whole  amount  of 
the  insurance,  and  represented  the  estate  as  insolvent ;  and  the  ques- 
tion was  "  whether  the  case  shows  an  assignment  which  vested  any 
interest  in  this  policy,  legal  or  equitable,  in  the  plaintiff." 

The  court  held  that  it  did  not,  and  said  :  "According  to  the  modern 
decisions,  courts  of  law  recognize  the  assignment  of  a  chose  in  action, 
so  far  as  to  vest  an  equitable  interest  in  the  assignee,  and  authorize 
him  to  bring  an  action  in  the  name  of  the  assignor,  and  recover  a  judg- 
ment for  his  own  benefit.  But  in  order  to  constitute  such  an  assign-> 
ment  two  things  must  concur:  first,  the  party  holding  the  chose  in 
action  must,  by  some  significant  act,  express  his  intention  that  the 
assignee  shall  have  the  debt  or  right  in  question,  and,  according  to  the 
nature  and  circumstances  of  the  case,  deliver  to  the  assignee  or  to  some 
person  for  his  use,  the  security,  if  then.'  be  one,  bond,  di-ed,  note  or 
written  agreement,  upon  wliich  the  drbt  or  chose  in  action  arises  ;  and, 
secondl}',  the  transfer  shall  be  of  the  wliole  and  entire  debt  or  obliga- 
tion in  which  the  chose  in  action  consists.  ...  It  appears  to  us  that 
the  order  indorsed  on  this  policy  and  retained  by  the  assured  fails  of 

VOL.    I.  —  oU 


466  JAMES   V.    CITY   OF   NEWTON.  [CHAP.    ill. 

timoiinling  to  an  assignment  in  both  of  these  particulars."  The  court 
further  said  that,  if  an  order  be  "  for  a  part  only  of  the  fund  or  debt, 
it  is  a  diaft  or  bill  of  exchange,  which  does  not  bind  the  drawee,  or 
transfer  any  proprietary  or  equitable  interest  in  the  fund,  until  ac- 
cepted b}'  the  drawee.  It  therefore  creates  no  lien  upon  the  fund. 
Upon  this  point  the  authorities  seem  decisive.  Welch  v.  Mandeville, 
1  Wheat.  233,  s.  c.  5  ib.  277  ;  Robbins  v.  Bacon,  3  Greenl.  346  ;  Gib- 
son r.  Cooke,  20  Pick.  15." 

Welch  V.  Mandeville,  ubi  supra,  was  an  action  of  covenant  broken, 
brought  by  Prior  in  the  name  of  Welch  against  Mandeville,  who  set  up 
a  release  by  Welch,  to  which  Prior  replied  that  Welch,  before  the  re- 
lease, had  assigned  the  debt  due  by  reason  of  the  covenant  to  him,  of 
■which  the  defendant  had  notice.  The  court  consider  the  effect  of 
certain  bills  of  exchange,  and  say:  "But  where  the  order  is  drawn 
either  on  a  general  or  a  particular  fund  for  a  part  only  it  does  not 
amount  to  an  assignment  of  that  part,  or  give  a  lien  as  against 
the  drawee,  unless  he  consent  to  the  appropriation  b3-  an  acceptance 
of  the  draft;"  that  "a  creditor  shall  not  be  permitted  to  split  up 
a  single  cause  of  action  into  many  actions  without  the  assent  of  his 
debtor;"  and  that  "  if  the  plaintiff  could  show  a  partial  assignment 
to  the  extent  of  the  bills,  it  would  not  avail  hira  in  support  of  the 
present  suit." 

The  equitable  doctrine  now  maintained  by  the  Supreme  Court  of  the 
United  States  is  shown  by  Wright  v.  Ellison,  1  Wall.  16  ;  Christmas  v. 
Russell,  14  Wall.  69  ;  Trist  v.  Child,  21  Wall.  441  ;  and  Pengh  v.  Porter, 
112  U.  S.  737.  In  Peugh  v.  Porter,  that  court  ordered  that  a  decree 
be  entered  that  Peugh,  subject  to  certain  rights  in  the  estate  at  Win- 
der, was  entitled  to  one  fourth  of  a  fund,  by  virtue  of  an  assignment 
of  one  fourth  of  a  claim  against  Mexico,  made  before  the  establishment 
of  the  claim  from  which  the  fund  was  derived,  and  before  tlie  fund  was 
in  existence,  and  declared  the  law  to  be  that  "it  is  indispensable  to  a 
lien  thus  created  that  there  should  be  a  distinct  appropriation  of  the 
fund  by  the  debtor,  and  an  agreement  that  the  creditor  should  be  paid 
out  of  it."  In  Robbins  v.  Bacon,  ubi  supra,  the  order  was  for  the  pay- 
ment of  the  whole  of  a  particular  fund,  and  was  held  good. 

The  existing  law  of  Maine  is  declared  in  National  Exchange  Bank  v. 
McLoon,  73  Maine,  498,  by  an  elaborate  opinion,  and  the  conclusion 
reached  is  that  an  assignment  of  a  part  of  a  chose  in  action  is  good 
*ia  equity,  and  airainst  a  trustee  process. 

In  England  it  is  held  that  the  particular  fund  or  debt  out  of  which 
the  payment  is  to  be  made  must  be  specified  in  the  assignment  (Percival 
V.  Dunn,  29  Ch.  D.  128)  ;  but  the  assignment  of  a  part  of  a  debt  or  fund 
is  good  in  equity.  The  present  case  is  like  Ex  parte  Moss,  14  Q.  B.  D. 
310,  and  a  stronger  case  for  the  plaintiff  than  Brice  i^.  Bannister,  3  Q.  B. 
D.  569,  where,  although  the  procedure  was  under  the  St.  of  36  &  3< 
Vict.  c.  66,  tlie  foundation  of  the  liability  was  that  the  assiguuient  was 
good  in  equity  ;  and  the  case  at  bar  is  relieved  from  the  difficulties  which 


SECT.   n.J  JAMES    V.    CITY    OF    NEWTON.  467 

induced  Brett,  L.  J.,  in  that  case  to  dissent ;  and  Brice  u.  Bannister  was 
approved  in  Exjyarte  Hall,  10  Ch.  D.  615.  The  present  case  also  re- 
sembles Tooth  V.  Hallett,  L.  li.  4  Ch.  242,  except  that  there  the  sums 
paid  by  the  trustee  for  creditors  in  finishing  the  house  exhausted  all 
that  became  due  under  the  contract.  See  also  Addison  v.  Cox,  L.  R. 
8  Ch.   76. 

In  Appeals  of  Philadelphia,  86  Penn.  St.  179,  it  is  conceded  that  the 
rule  that  an  assignment  of  a  part  of  a  debt  is  valid  prevails  in  equit}' 
between  individuals  ;  but  the  court  refused  to  apply  it  to  a  debt  due 
from  a  municipal  corporation,  on  the  ground  that  "  the  policy  of  the 
law  is  against  permitting  individuals,  by  their  private  contracts,  to  em- 
barrass the  principal  officers  of  a  municipality."  See  Geist's  appeal, 
104  Penn.  St.  351.  But  there  is  no  ground  for  an}-  such  distinction  in 
this  Commonwealth. 

In  New  York  the  assignment  of  a  part  of  ajdebt  or  fund  is  good  in 
eauitx^  Field  v.  Mayor,  2  Seld.  179  ;  Rlsley  wrPhenix  Bank,^83  N.  Y. 
318.  And  the  same  doctrine  is  maintained  in  other  States.  Daniels  xk 
Meiubard,  53  Ga.  359  ;  Etheridge  v.  Vernoy,  74  N.  C.  809  ;  Lapping 
V.  Duffy,  47  Ind.  51  ;  Fordj'ce  y.  Nelson,  9 1  Ind.  447  ;  Bower  v.  Hadden 
Blue  Stone  Co.,  3  Stew.  (N.  J.)  171  ;  Gardner  v.  Smith,  5  Heisk.  256  ; 
Grain  v.  Aldrich,  38  Cal.  514  ;  Des  Moines  v.  Hinkley,  62  Iowa,  637 ; 
Canty  v.  Latterner,  31  Minn.  239  ;  First  National  Bank  v.  Kimberlands, 
16  W.  Va.  555. 

From  the  examination  of  our  cases,  it  appears  not  to  have  been  de- 
cided that  there  cannot  be  an  assignment  of  a  part  of  a  fund  or  debt 
which  will  constitute  an  equitable  lien  or  charge  upon  it,  and  be  en- 
forced in  equit}'  against  the  debtor  or  person  holding  the  fund.  Palmer 
V.  Merrill,  ubi  supra,  may  well  rest  upon  the  first  i-eason  given  for  the 
decision.  See  Stearns  v.  Quinc}*  Ins.  Co.,  124  Mass.  61-63.  The  de- 
cisions of  courts  of  equity  in  other  jurisdictions  are  almost  unanimous 
in  maintaining  such  a  lien  where  the  assignment  is  for  value,  distinctly 
appropriates  a  part  of  the  fund  or  debt,  and  makes  the  sum  assigned 
specifically  payable  out  of  it. 

Without  undertaking  to  decide  what  is  not  before  us,  and  confining 
ourselves  to  tlie  facts  in  the  case,  which  are  that  the  debt  is  admitted 
and  remains  unpaid,  and  the  debtor  in  his  answer  asks  the  court  to  de- 
termine the  rights  of  the  different  claimants,  we  think  that  there  should 
be  a  decree  that  the  city  of  Newton  pay  to  the  plaintiff  $600  ;  and  that 
the  remainder  of  the  sum  due  from  the  city,  after  deducting  its  costs, 
be  paid  to  Gilkey,  assignee. 

The  assignment  was  not  made  in  fraud  of  the  laws  relating  to 
insolvency.  So  ordered.^ 

1  The  authorities  on  the  effect  of  partial  assignments  are  collected  in  Ames's  Cas. 
on  Trusts  {2d  ed.),  63  n. 


468  MARCH  V.  WARD.  [cHAP.  nr. 


SECTION  III. 
JOINT   OBLIGATIONS. 


v/ 


MARCH   V.   WARD. 
At  Nisi  Prius,  June  30,  1792. 

[Reported  in  Peake's  Cases,  130.] 

Assumpsit  on  a  promissory  note  made  by  the  defendant  and  one 
Bowling,  in  the  following  words,  viz : 

"  I  promise  to  pay  three  months  after  daie,  to  Wm.  March,  £8  5s.  for  value 
received  in  fixtures. 

"  Robert  Bowling. 
"Thomas  Ward." 

It  was  objected  that  this  promissory  note  was  joint  onlj,  and  not 
several. 

Lord  Kenyon.  I  think  that  this  note,  beginning  in  the  singular  num- 
ber, is  several  as  well  as  joint,  and  that  the  present  action  may  be 
maintained  on  it.  I  remember  a  case  tried  before  Mr.  Moreton  at 
Chester,  exactly  similar  to  the  present,  wherein  I  was  counsel  for  the 
defendant ;  I  persuaded  the  judge  that  it  was  a  joint  note  onh",  and 
the  plaintiff  was  nonsuited,  but  on  an  application  being  afterwards 
made  to  this  Court,  they  were  of  a  contrary  opinion,  and  a  new  trial 
was  granted.     The  letter  I  applies  to  each  severally. 

Verdict  for  th  e  plaiix  tiff.  ^ 

1  The  obligation  is  joint  and  several.  Bank  of  Louisiana  r.  Sterling,  2  La.  62  ; 
New  Orleans  v.  Ripley,  5  La.  122;  Hemmenway  v.  Stone,  7  Mass.  58;  Van  Alstyne 
V.  Van  Slytk,  10  Barb.  383  ;  Dill  i'.  White,  52  Wis.  456.  Compare  Brown  v.  Fitch, 
4  Vroom,  418. 

"  If  two,  three,  or  more  bind  themselves  in  an  obligation  thus,  obligamus  nos,  and 
say  no  more,  the  obligation  is,  and  shall  be  taken  to  be  joint  only,  and  not  several." 
Shep.  Touch,  375.  See  also  Jernigan  v.  Wimberly,  1  Ga.  220 ;  Bank  of  Louisiana  v. 
Sterling,  2  La.  62  ;  New  Orleans  v.  Ripley,  5  La.  122  ;  Me3'er  v.  Estes.  164  Mass.  457. 
But  see  contra,  Morange  v.  Mudge,  6  Abb.  Prac.  243. 

"  If  three  be  bound  jointly  and  severally  in  a  bond,  the  obligee  cannot  sue  two  of 
them  only,  but  he  must  either  sue  them  all  or  each  of  them  separately.  And  though 
that  doctrine  has  been  several  times  questioned,  yet  it  has  been  held  good  law  from 
the  time  of  Lord  Coke."  Streatfield  v.  Halliday,"  3  T.  R.  779,  782  ;  Stevens  v.  Catlin, 
152  111.  56,  58,  ace. 


SECT,   in.]       CITY   OP   PHILADELPHIA   V.   REEVES   &   CABOT.      469 

THE    CITY  OF  PHILADELPHIA   v.    RP:EVES    AND   CABOT. 
Pennsylvania  Supreme  Court,  1865.  ^ 

[Reported  in  48  Pennsylvania  State,  472.] 

P2rror  to  the  District  Court  of  Philadelphia. 

This  was  an  action  of  covenant,  by  the  City  of  Philadelphia  against 
Samuel  J.  Reeves  and  Joseph  Cabot,  as  sureties  of  Fort  Ihrie.  After 
a  declaration  in  the  usual  form,  on  a  covenant  dated  Ma}'  9th,  1859, 
between  the  plaintiff  and  defendants,  for  the  use  of  a  wharf  or  landing 
at  the  foot  of  Callowhill  Street,  on  the  river  Delaware  ;  the  defendants 
craved  oyer  of  the  instrument  on  which  suit  was  brought. 

The  plaintiffs  thereupon  placed  on  record  a  copy  of  the  following 
instrument :  — 

"  Memorandum.  The  City  of  Philadelphia  demise  to  Fort  Ihrie  the  wharf 
or  landing  at  the  foot  of  Callowhill  Street,  on  the  river  Delaware,  and  the  pier 
and  wharf  next  south  thereof,  being  the  same  premises  heretofore  called  and 
known  as  the  Callowhill  Street  Ferry  and  Landing,  for  the  terra  of  three 
years  from  April  25th,  1859,  at  the  annual  rent  of  twenty-three  hundred  dol- 
lars, payable  quarterly:  the  first  payment  to  be  made  on  the  25th  day  of  July, 
1859;  and  if  the  rent  shall  remain  unpaid  on  any  day  on  which  the  same 
ought  to  be  paid,  then  the  lessors  may  enter  on  the  premises  and  proceed,  by 
distress  and  sale  of  the  goods  there  found,  to  levy  the  rent  and  all  costs.  Thft. 
lessee  and  his  sureties,  Joseph  Cabot  and  Samuel  J.  Reeves,  covenant  with 
the  lessors  to  pay  tne  rent  punctually  as  above  provided  for,  and  the  lessee 
covenants  during  the  terra  to  keep,  and  at  the  end  thereof  peacealdy  to  de- 
liver up  the  premises,  in  good  order  and  repair,  reasonable  wear  and  tear  and 
damage  by  accidental  fire  excepted,  and  not  assign  this  lease  or  underlet  the 
premises,  or  any  part  thereof. 

"  And  if  the  lessee  shall  in  any  particular  violate  any  one  of  his  said  cove- 
nants, then  the  lessors  may  cause  a  notice  to  be  left  on  the  premises  of  their 
intention  to  determine  this  lease,  and  at  the  expiration  of  ten  days  from  the 
time  of  so  leaving  such  notice,  this  lease  shall  absolutely  determine;  and 
upon  the  expiration  or  other  determination  of  this  lease,  any  attorney  may 
immediately  thereafter,  as  attorney  for  the  lessee,  sign  an  agreement  for 
entering,  in  any  competent  court,  an  amicable  action  and  judgment  in  eject- 
ment (without  any  stay  of  execution)  against  the  lessee,  and  all  persons 
claiming  under  him,  for  the  recovering  by  the  lessors  of  possession  of  the 
hereby  demised  premises,  for  which  this  shall  be  a  sufficient  warrant;  and  the 
lessee  thereby  releases  to  the  lessors  all  errors  and  defects  whatsoever  in  enter- 
ing such  action  or  judgment,  or  in  any  proceeding  thereon,  or  concerning  the 
same.  Xo  such  determination  of  this  lease,  nor  taking  or  recovering  posse.'*- 
sion  of  the  premises,  shall  deprive  the  lessors  of  any  action  against  the  lessee 
or  his  sureties  for  the  rent,  or  against  the  lessee  for  damages.  All  rights  and 
liabilities  herein  given  to  or  imposed  upon  either  of  the  parties  hereto  shall 
extend  to  the  heirs,  executors,  administrators,  successors,  and  assigns  of  such 
party. 

"  In  witness  whereof  the  lessee  and  his  sureties  have  hereunto  set  their 
hands  and  seals,  and  the  corporate  seal  of  the  lessors  has  been  hereunto 
affixed  by  the  mayor  of  the  city  of  Philadelphia,  this  9th  day  of  May,  a.d. 


470     CITY   OF   PHILADELPHIA   V.    REEVES   &   CABOT.       [CHAP.    IIL 

1859,  the  said  lease  having  been  awarded  prior  to  the  election  of  the  said 
lessee  as  a  member  of  common  council. 

"  Fort  Ihrie.  [seal.] 

"  (Signed)  "  Samuel  J.  Reeves,     [seal.] 

"Joseph  Cabot.  [seal.] 

"Sealed  and  delivered  in 
the  presence  of  E.  B.  McDowell. 

[seal.]  "  Alexander  Henry, 

"  Mayor  of  Philadelphia." 

This  instrument  being  read  and  heard,  the  defendants  b}'  their 
attorney  prayed  judgment  of  the  said  writ  and  declaration,  because  the 
supposed  covenant  in  the  said  declaration  mentioned,  if  any  sut-h  were 
made,  was  jointly  made  with  Fort  Ihrie,  who  sealed  and  delivered  also 
the  said  deed,  who  is  still  living,  to  wit,  &c.,  and  not  by  the  said 
Samuel  J.  Reeves  and  Joseph  Cabot  alone,  wherefore,  inasmuch  as  the 
said  Fort  Ihrie  is  not  named  in  the  said  writ  and  declaration  together 
with  the  said  Samuel  J.  Reeves  and  Joseph  Cabot,  they,  the  said 
Samuel  J.  Reeves  and  Joseph  Ckbot,  prayed  judgment  of  the  writ  and 
declaration,  and  that  the  same  may  be  quashed,  &c. 

To  this  the  plaintiff  demurred,  and  stated  the  following  cause  of  de- 
murrer, viz.,  "that  the  instrument  of  which  there  has  been  oyer,  shows 
on  the  face  thereof  that  the  said  defendants  are  bound  as  sureties  for 
the  said  Fort  Ihrie,  and  that  by  reason  of  the  subject-matter  the  said 
covenant  is  not  jointly  with  said  Fort  Ihrie,"  &c. 

The  court  below  entered  judgment  for  the  defendants  on  the  de- 
murrer, which  was  the  error  assigned. 

David  W.  Sellers  and  F.  Carroll  Brewster,  for  plaintiff  in  error. 

E.  Spencer  Miller,  for  defendants  in  error. 

The  opinion  of  the  court  was  delivei'ed,  January  2.5th,  1865,  by 

Strong,  J.  That  the  covenant  for  the  payment  of  rent,  upon  which 
this  suit  was  brought,  iiii[)(>sed  upon  the  defendants  only  an  obligation 
jointly  with  Fort  Ihric,  their  principal,  is  too  clear  for  doubt.  It  is  a 
general  presumption  of  law,  when  two  or  more  persons  undertake  an 
obligation,  tliat  they, undertake  jointly.  Words  of  severance  are  neces- 
sary to  overcome  this  primary  i)resumption.  In  all  written  contracts, 
therefore,  wliether  the  liability  incurred  is  joint  or  several,  or  joint  and 
several,  is  to  be  determined  by  looking  at  the  words  of  the  instruments, 
and  at  them  alone.  The  subject-matter  of  the  contract,  and  the  in- 
terests of  the  parties  assuming  a  liability,  have  nothing  to  do  with  the 
question.  It  may  be  otherwise  with  respect  to  the  rights  of  the  cove- 
nantees, where  there  are  more  than  one.  There  are  not  wanting  cases 
in  which  it  has  been  held  that  when  the  interests  of  the  covenantees  are 
several,  they  may  sue  severally,  though  the  terms  of  the  covenant  upon 
which  they  sue  are  strictl}' joint.^    Even  this,  however,  has  been  doubted. 

1  Goldsmith  v.  Sachs,  17  Fed.  Rep.  726  ;  Burton  v.  Henrv,  90  Ala.  281 ;  St.  Louis, 
&c.  R.  R.  Co.  V.  Coultas,  33  111.  189  ;  Ilaskins  v.  Lombard,  IG  Me.  140  ;  Jacobs  v.  Davis, 
34  Md.  204  ;  Alpaugh  v.  Wood,  53  N.  J.  L.  638,  644;  Gazley  v.  Wayue,  36  'J'ex.  089  ; 
Sharp  V.  Conkling,  16  Vt.  355,  ace.  Compare  Meyer  v.  Estes,  164  Mass.  157;  and  see 
1  Parsons  on  Contracts,  *14,  note  {j). 


SECT,   ni.]  KICHAKDS   V.    HEATHER.  471 

But,  however  it  maj'  be  with  the  rights  of  covenantees,  it  is  a  settled 
rule  that  whether  the  liability  of  covenantors  is  joint,  or  several,  or 
both,  depends  exclusiveh'  upon  the  words  of  the  covenant.  And  the 
language  of  severalty  or  joinder  is  the  test.^  The  covenant  is  always 
joint,  unless  declared  to  be  otherwise  :  Enys  v.  Donnithorne,  2  Bur- 
rows, 1190;  Philips  v.  Bonsall,  2  Binn.  138.  It  is  true,  that  in  the 
covenant  to  pay  rent,  contained  in  the  lease  to  Fort  Ihrie,  the  two  de- 
fendants are  described  as  sureties,  but  they  and  the  lessee  undertook 
to  pay  the  rent  as  one  party.  Their  being  described  as  sureties  can- 
not be  regarded  as  a  declaration  of  intent  to  undertake  severally.  Nor 
does  the  covenant  contain  any  words  of  several  liabilit}-  for  rent.  The 
defendants  assumed  no  other  obligation  than  that  they  and  the  lessee 
would  pa}'.  The  case  is  indubitably  within  the  general  rule  that  a  cove- 
nant b}-  two  or  roore  is  joint  as  to  them,  if  not  expressl}'  declared 
several,  or  joint  and  several.  The  plea  in  abatement  was  therefore 
correctly  sustained,  and  the  judgment  on  the  demurrer  was  right. 

The  judgment  is  affirmed,* 


/ 


RICHARDS  AND  Another  v.  HEATHER. 
In  the  King's  Bench,  November  6,  1817. 

[Reported  in  1  Bamewall  Sf  Alderson,  29.] 

Assumpsit  for  work  and  labor.  The  declaration  contained  only  one 
set  of  counts,  charging  the  defendant  in  his  own  right.  Plea,  non 
assumpsit.  At  the  trial  before  Abbott,  J,  at  the  last  spring  assizes 
for  tlie  county  of  Southampton,  the  plaintiff  proved  two  distinct  de- 
mands ;  one  due  from  the  defendant  individually,  the  other  in  respect 
of  work  done  upon  a  ship,  which  had  belonged  to  the  defendant,  and 
one  Rous,  who  had.  jointly  with  the  defendant,  given  directions  for 
the  work,  and  who  was  dead  at  the  time  of  action  brought.  The 
learned  judge  entertaining  a  doubt  whether  in  respect  of  this  last 
demand  the   defendant   should  not  have   been  charged   as  surviving 

1  But  promisors  on  subscription  papers  are  held  to  promise  severally  though  the 
language  is  appropriate  for  a  joint  promise.  Davis,  &c.  Co.  v.  Barber,  51  Fed.  Kep. 
148  ;  i'rice  v.  Railroad  Co.,  18  Ind.  1.37  ;  Landwerleu  v.  Wheeler,  106  Ind.  52.3  ;  Hall 
V.  Thayer,  12  Met.  130;  Davis  v.  Belford,  70  Mich.  120;  Gibbons  v.  Bente,  51  Minn. 
499;  Cornish  &  Co.  i'.  West,  82  Minn.  107.  But  see  contra,  Davis  v.  Shafer,  50  Fed. 
Rep.  764 ;  Darnell  v.  Lyon,  85  Tex.  455.     See  further  22  L.  R.  A.  80  n. 

^  Illustrations  of  the  rule  that  obligations  are  presumptively  joint  may  be  found  in 
Byers  v.  Doby,  1  H.  Bl.  236  ;  Hill  v.  Tucker,  1  Taunt.  7  ;  Mansell  v.  Burredge,  7  T.  R. 
3.52  ;  Hatsall  y.  Griffith,  4  Tyr.  487  ;  Crosby  v.  Jeroloman,  37  Ind.  264 ;  Eller  v.  Lacy, 
137  Ind.  436  ;  Field  v.  Runk,  2  Zab.  525 ;  Alpaugh  v.  Wood,  53  N.  J.  L.  638 ;  Trenton 
Totteries  Co.  v.  Oliphant,  56  N.  J.  Eq.  680,  698;  Muzzy  v.  Whitney,  10  Johns.  226; 
8tage  V.  Olds.  12  Ohio,  158.  Compare  Shipman  v.  Straitsville  Co.,  158  U.  S.  356; 
Davis,  &c.  Co.  V.  Jones,  66  Fed.  Rep.  124 ;  Des  Moines  Co.  v.  York  Co.,  92  la.  396 ; 
Colt  V.  Learned,  118  Mass.  380  ;  Ernst  v.  Bartle,  1  Johns.  Cas.  319.  But  contra,  by 
statute.  Pecquet  v.  Pecquet,  17  La.  Ann.  204;  Stowers  f.  Blackburn,  21  La.  Ann.  127; 
Burney  v.  Ludeling,  47  La.  Ann,  73  ;  Clough  v.  Holden,  115  Mo.  336. 


472  RICHARDS   V.    HEATHER.  [CHAP.    HI. 

partner,  directed  the  jury  to  find  a  verdict  for  the  whole  sum  claimed, 
with  liberty  to  the  defendant  to  move  to  reduce  it  to  the  amount  of 
the  first  demand  only,  if  the  court  should  be  of  that  opinion.  Ac- 
cordingly, Pell,  Serjt.,  in  Easter  Term  last,  obtained  a  rule  nisi  for  that 
purpose  ;  and  now 

Gaselee  and  A.  Moore  showed  cause. 

JPell,  Serjt,  contra. 

Lord  Ellenbokodgh,  C.  J.  I  am  of  opinion  that  the  plaintiff 
is  entitled  to  both  the  sums  which  he  seeks  to  recover  under  this 
declaration.  It  would  be  more  convenient  in  all  cases,  where  a  debt 
accrues  from  the  defendant  as  surviving  partner,  to  declare  against 
him  accordingl}^,  because  it  is  convenient  to  make  the  forms  of  declara- 
tion subservient  to  the  information  of  the  party  charged  ;  but  it  is  not 
essentially  necessary  to  the  maintenance  of  the  action,  for  where  tliere 
are  several  partners  who  are  living,  one  of  them  may  be  declared  against 
as  the  sole  debtor,  and  the  only  objection  to  this  mode  of  declaring  is, 
that  the  plaintiff  is  liable  to  be  turned  round,  by  a  plea  in  abatement.^ 
But  inasmuch  as  where  the  other  partner  is  dead  there  cannot  be  an}' 
plea  in  abatement,  cessante  ratione,  cessat  lex.  The  reason  which 
requires  that  the  demand  shall  be  stated  as  a  joint  demand  ceases 
when  a  plea  in  abatement  can  be  no  longer  pleaded.  It  seems  to  me, 
therefore,  that  the  plaintiff  ma^'  maintain  his  action,  as  well  for  the 
demand  for  which  the  defendant  was  liable  individually,  as  for  that 
for  which  he  was  liable  jointly  with  the  other  partner,  who  is  now  dead. 
According  to  every  principle  of  law,  the  joint  debt  maj',  b}'  reason  of 
the  death  of  the  party,  be  now  treated  as  if  it  had  been  originalh'  a 
separate  debt.  I  think  therefore  there  is  not  an}'  occasion  to  make 
any  distinction  in  the  declaration  on  account  of  the  sources  from  which 
the  debts  originally  sprung. 

Bayley,  J.  I  think  that  the  plaintiff  is  entitled  to  recover  both 
sums,  and  that  the  doctrine  in  Spalding  v.  Mure  cannot  be  supported. 
Upon  a  count  for  work  and  labor,  goods  sold  and  delivered,  and  mone}' 
had  and  received,  &c.,  a  plaintiff  may  recover  all  such  demands  as 
fall  within  the  range  of  that  count ;  if  he  has  twenty  demands  he  may 
recover  each  and  every  particular  demand  to  which  that  count  is  ap- 
plicable. Supposing  there  had  been  one  demand  onh',  namelv,  a 
separate  demand,  could  plaintiff  have  been  prevented  from  recovering 
that  demand  on  this  declaration,  on  the  ground  of  a  variance?  Cer- 
tainly not ;  it  is  true  in  respect  of  that  demand  he  is  solely  indebted. 
Then  as  to  the  demand  which  was  due  from  the  defendant  and  Rous 
jointly,  the  work  was  done  for  each,  and  each  was  liable  for  the  whole ; 

1  Rice  r.  Shute,  5  Burr,  2611  ;  Monntstephen  v.  Brooke,  1  B.  &  Aid.  224;  First 
Nat.  Bank  v.  Hamor,  49  Fed.  Rep.  45  (C.  C.  A.) ;  Elder  v.  Thompson,  13  Gray,  91  ;  Coon 
V.  Anderson,  101  Mich.  29.5 ;  Davis  v.  Chouteau,  32  Minn.  548  ;  Sandwich  Mfg.  Co.  v. 
Kimberly,  37  Minn.  214 ;  Maurer  v.  Midway,  25  Neb.  575  ;  Beeler  v.  Bank,  34  Neb. 
348;  Lieherman  v.  Brothers,  55  N.  J.  379;  Nash  v.  Skinner,  12  Vt.  219;  Hicks  r. 
Cram,  17  Vt.  449  ;  Willson  v.  McCormick,  86  Va.  995,  ace. 


SECT.    III.]  RICHARDS   V.    HEATHER.  473 

this  is  tlie  argument  adopted  b}'  Lord  Mansfield  in  Rice  v.  Shute, 
5  Burr,  2613:  "All  contracts  with  partners  are  joint  and  several; 
every  partner  is  liable  to  pay  the  whole."  Proving  that  another 
person  contracted  does  not  negative  that  the  defendant  himself  con- 
tracted. If  that  be  the  case,  and  if  the  work  which  was  originally 
done  for  Rous  and  Heather  was  originally  done  for  either,  it  follows 
that  it  may  be  truly  predicated  that  the  defendant  was  solely  indebted 
for  work  and  labor  done  for  him ;  and  then  I  do  not  see  upon  what 
principle  the  plaintiff  can  be  prevented  from  recovering  for  this  de- 
mand also  under  this  declaration. 

Abbott,  J,  I  am  of  the  same  opinion.  The  question  was  reserved, 
in  consequence  of  a  doubt  suggested  by  me  upon  the  form  of  the 
declaration ;  and  m}'  doubt  was,  whetlier  it  was  not  necessar}-  to 
charge  the  defendant,  as  surviving  partner,  in  respect  of  the  last 
demand.  My  doubt  did  not  arise  in  respect  of  there  being  evidence 
given  of  two  distinct  demands,  but  in  respect  of  the  form  of  the  declar- 
ation, as  applicable  to  the  last  demand.  It  is  possible  that  I  may  have 
had  an  indistinct  recollection  of  what  fell  from  the  court  in  Spalding 
V.  Mure,  but  I  now  think  that  the  doctrine  there  laid  down  is  not  law. 
Bvthe  law  of  England,  where  several  persons  make  a  joint  contract, 
ea^chis  liablefor  the,  whol&^althou^h  the  contract  be  joint.  In  Whelp- 
dale  s  case^  h  Rep.  119,  the  plaintiff  had  declared  on  a  bond  made  by 
the  defendant,  to  which  the  defendant  pleaded  non  est  factum ;  the 
jury  found  that  the  bond  was  a  joint  bond,  made  b}-  the  defendant 
and  another  to  the  plaintiff,  and  upon  this  special  verdict  it  was 
adjudged  by  the  court  that  the  plaintift"  should  recover ;  "  because 
when  two  men  are  jointly  bound  in  one  bond,  although  neither  of 
them  is  bound  by  himself,  yet  neither  of  them  can  say  that  the  bond 
is  not  his  deed ;  for  he  has  sealed  and  delivered  it,  and  each  of  them 
is  bound  in  the  whole."  That  was  a  case  upon  a  deed,  but  Rice  v. 
Shute  was  a  case  upon  a  simple  contract ;  and  it  was  there  held  that 
although  the  promise  was  a  joint  promise,  3'et  the  defendant,  who  was 
sued  alone,  could  not  sa3"  that  he  did  not  promise  ;  and  that  the  only 
wa}'  of  taking  advantage  of  the  omission  of  the  other  joint  contractor 
was  by  plea  in  abatement.  These  two  cases  establish  this,  that  proof 
of  a  joint  contract  is  sufficient  to  sustain  an  allegation  that  one  con- 
tracted ;  and  therefore  there  is  no  variajice ;  and  if  not,  then  the 
proof  given  in  this  case  was  competent  to  sustain  the  declaration  in 
respect  of  both  demands,  and  this  rule  must  be  discharged. 

HoLROYD  J.  I  think  that  the  proof  was  properlv  received.  The 
declaration  charges  that  the  defendant  was  indebted  in  a  certain  sum, 
for  work  and  labor,  which  he  promised  to  pa}-.  Under  this  declara- 
tion the  plaintiff  would  not  be  entitled  to  recover  anything,  except 
for  a  ground  of  action  corresponding  with  that  stated  in  the  declara- 
tion. Now  it  is  not  disputed  but  that  the  joint  demand  was  a  demand 
coming  within  the  description  of  work  and  labor ;  and  if  the  defendant 
had  been  alone  sued  for  it  without  the  other,  the  plaintiff  might  liave 


-jT4  jell  v.   DOUGLAS.  [CHAP.   HI. 

recovered,  because  tliere  would  not  have  been  any  variance.  It  seems 
to  uie,  therefore,  this  demand  may  now  be  recovered,  although  there 
was  a  separate  cause  of  action.  Hide  discharged. 


JELL  V.   DOUGLAS. 
In  the  King's  Bench,  Easter  Tekm,  1821. 

[Reported  in  4  Barnewall  Sr  Alderson,  374.] 

Assumpsit  for  goods  sold  and  delivered  b}-  Jell  to  the  defendant. 
Plea,  general  issue.  At  the  trial,  before  Abbott,  C.  J.,  at  the  last  sum- 
mer assizes  for  the  county  of  Kent,  the  proof  was,  that  the  goods  were 
sold  to  the  defendant  by  the  plaintiff  and  his  son,  who  were  in  partner- 
ship. The  son  had  died  before  the  commencement  of  this  action.  It 
was  contended  that  this  was  a  variance,  inasmuch  as  the  contract 
stated  in  the  declaration  was  with  the  plaintiff  alone  ;  whereas  that 
given  in  evidence  was  with  the  plaintiff  and  another.  Abbott,  C  J., 
reserved  the  point,  and  directed  the  jur}^  to  find  a  verdict  for  the  plain- 
tiff, with  liberty  to  the  defendant  to  move  to  enter  a  nonsuit.  A  rule 
nisi  for  that  purpose  having  been  obtained  in  last  Michaelmas  Term,  — 

Marryat  and  (Jhitty  now  showed  cause. 

Abbott,  C.  J.  It  is  a  well-established  rule  that  where  two  persons 
are  joint-sellers  of  goods,  they  must  both  join  in  an  action  brought  to 
recover  the  price.  It  was  decided  in  Richards  v.  Heather,  1  B.  &  A. 
29,  tl)at  a  party  may  mnintain  an  action  against  a  surviving  parttier 
without  describing  him  as  such,L^nd  the  reason  of  that  decision  was 
this,  that  if  the  partners  had  been  alive,  and  one  only  was  sued,  that 
circumstance  could  only  be  taken  advantage  of  b}'  plea  in  abatement, 
and  was  no  defence  upon  the  general  issue.  But  if  one  of  two  joint 
contractors  sue,  both  being  alive,  that  is  a  variance,' and  a  good  defence 
upon  the  general  issue. ^  It  seems,  therefore,  to  be  reasonable  that 
where  a  surviving  joint-contractor  sues,  the  fact  of  his  being  survivoi 
should  appear  in  the  declaration.  In  a  note  to  Webber  v.  Tivill,  2 
Saund.  121,  n.  1,  Mr.  Serjt.  Williams  ^3-8  it  down,  that  it  is  necessary 
that  all  the  persons  with  whom  a  contract  has  been  made,  if  living, 
should  join  in  the  action,  and  if  an}'  of  them  are  dead,  that  fact  should 
be  stated.  From  my  own  experience  I  can  say  that  that  has  been  the 
general  practice,  and  I  think  ought  not  to  have  been  departed  from  in 
this  instance.     The  rule  for  a  nonsuit  must  be  made  absolute. 

Rule  absolute. 
Gurney  and  Comyn  were  to  have  argued  in  support  of  the  rule. 

1  Chanter  v.  Leese,  4  M.  &  W.  295,  ace. 

2  Or,  if  the  record  shows  the  defect,  by  demurrer  or  motion  in  arrest  of  judgment. 
Petrie  v.  Bury,  3  B.  &  C.  353  ;  Pugh  i;.  Stringfield,  3  C.  B.  n.  s.  2 ;  Wetherell  i;.  J.ang- 
ston,  I  Ex.  634;  Beach  v.  Hotchkiss,  2  Coun.  697;  Baker  v.  Jewell,  6  Mass.  460; 
VViggin  V.  Cumraings,  8  Allen,  353  ;  Davis  v.  Chouteau,  32  Minn.  548  ;  Ehle  v.  Purdy^ 
6  Wend.  629. 


SECT,  in.]  KING   V.   HOARE.  475 


KING  AND   Another  v.   HOARE. 
In  the  Exchequer,  November  25,  1844. 

[Reported  in  13  Meeson  ^-  Welsh i/,  494.] 

Debt  for  goods  sold  and  delivered.  Plea,  that  the  said  goods  were 
sold  and  delivered  by  the  plaintiffs  to  the  defendant  jointly  with  one 
N.  T.  Smith,  and  not  to  the  defendant  alone,  and  were  to  be  paid  for 
to  the  plaintitts  by  the  defendant  jointly  with  the  said  N.  T.  Smith, 
and  not  by  the  defendant  alone,  and  that  the  said  moneys  in  the  declar- 
ation mentioned  were,  at  the  time  of  the  accruing  thereof,  to  wit,  &c., 
due  from  the  defendant  and  the  said  N.  T.  Smith  jointly,  and  not  from 
the  defendant  alone ;  that,  the  said  monej's  continuing  and  being  due 
and  payable  by  the  defendant  jointly  with  the  said  N.  T.  Smith,  the 
plaintiffs  heretofore,  to  wit,  &c.,  in  the  court  of  our  lady  the  Queen  at 
Westminster,  impleaded  the  said  N.  T.  Smith  in  an  action  of  debt, 
for  the  detaining  and  not  paying  of  the  said  mone\'  and  debt,  and  for 
and  in  respect  of  the  same  identical  causes  of  action  in  the  declaration 
mentioned ;  and  such  proceedings  were  thereupon  had  in  the  said 
action,  that  afterwards,  to  wit,  on,  &c.,  the  plaintiffs,  by  the  considera- 
tion and  judgment  of  the  said  court,  recovered  in  the  said  action  against 
the  said  N.  T.  Smith  the  said  several  money  and  sum  of  £16,000  above 
demanded,  as  also  £90  6s.,  as  damages  and  costs,  whereof  the  said. 
N.  T.  Smith  was  convicted,  as  by  the  record  and  proceedings  thereof, 
still  remaining  in  the  said  court  of  our  lad}'  the  Queen  at  West- 
minster, more  full}^  and  at  large  appears ;  which  said  judgment  still 
remains  in  full  force  and  effect,  and  not  the  least  reversed  or  made 
void.     Verification. 

Special  demurrer,  assigning  for  causes,  that  the  defendant  has  pleaded 
in  bar  of  the  action  matter  which  ought  to  have  been  pleaded,  if  at  all, 
in  abatement ;  that  the  plea  amounts  to  a  plea  of  never  indebted  ;  that 
the  plea  does  not  aver  that  the  monej's  were  not  due  from  the  defendant 
and  N.  T.  Smith  severall}'  and  jointly  ;  that  the  recover}-  of  a  judgment 
against  one  of  two  debtors  in  a  sum  certain  does  not  of  itself,  or  with- 
out satisfaction,  operate  in  law  to  bar  the  action  of  the  creditor  against 
the  other  debtor ;  and  that  the  plea  ought  to  have  concluded  with  a 
statement  that  the  defendant  was  ready  to  verify  it  by  the  record. 

Joinder  in  demurrer. 

The  case  was  argued  on  the  21st  of  November,  by  — 

tT.  Henderson,  in  support  of  the  demurrer.  The  position  which  is  to 
be  maintained  on  the  part  of  the  defendant  is,  that  a  judgment  recov- 
ered against  one  of  several  joint  debtors,  per  se,  without  satisfaction, 
may  be  pleaded  in  bar  to  an  action  against  another  of  the  joint  debtors. 
There  is   no  authority  for  such  a  position,  nor  is  it  consistent  either 


4T6  KING    V.   HOARE.  [CHAP.   III. 

with  natural  justice  ©r  with  tiie  policy  of  the  law.  The  case  of  a  ver- 
dict and  judgment  against  one  of  several  tort-feasors  is  altogether  dis- 
tinguishable. The  distinction  between  that  case  and  the  case  of  a 
joint  debt  is  laid  down  in  Brown  v.  Wootton,  Cro.  Jac.  73,  where  Pop- 
ham,  C.  J.,  says,  "  The  difference  between  this  case  and  the  case  of 
debt  upon  an  obligation  against  two  is,  because  there  every  of  them  is 
chargeable,  and  liable  to  the  entire  debt ;  and  therefore  recovery  against 
the  one  is  no  bar  against  the  other  until  satisfaction."  [Parke,  B.  — 
If  you  look  at  the  same  case  as  reported  in  Yelverton,  67,  it  seems  to 
refer  to  the  case  of  a  joint  and  several  obligation  against  two:  "ad 
where  two  are  bound  to  J.  8.  jointl}'  and  severall}',  the  recovery  and 
execution  against  one  is  no  bar  against  the  other ;  for  execution  is  no 
satisfaction  of  the  £100  demanded."]  In  the  modern  cases  there  are 
dicta  on  this  subject,  some  one  way,  some  the  other,  soaie  doubtful.  In 
Bell  V.  Bankes,  3  Man.  &  G.  258,  3  Scott,  N.  R.  497,  Maule,  J.,  says, 
"  It  may  be  that  taking  security  of  a  higher  value  from  one  of  two  joint 
debtors  would  cause  a  merger."  [Parke,  B.  —  That  observation  is  ap- 
plied to  the  case  of  a  bond  given  by  one  of  two  joint  debtors  to  a  credi- 
tor by  simple  contract.]  In  Watters  v.  Smith,  2  B.  &  Ad.  892,  Lord 
Tenterden  throws  out  an  intimation  that  the  mere  recover}'  against 
one  of  two  joint  debtors  will  not  exempt  the  other  from  liability. 
[Parke,  B,  —  There  the  sum  paid  bj*  one  of  the  joint  debtors  was  not 
meant  to  be  in  discharge  of  the  plaintiff's  rights  against  all  other  par- 
ties.] Taunton,  J.,  says  in  the  same  case,  "  A  release  given  to  one  of 
two  joint  contractors  enures  to  the  benefit  of  both.  So,  a  judgment  and 
satisfaction  as  to  the  one  is  a  stay  of  proceedings  against  the  other." 
In  Lechmere  v.  Fletcher,  1  C.  &  M.  634,  on  the  other  hand,  Ba^'ley,  B., 
adverting  to  the  language  of  Popham,  C.  J.,  in  Brown  v.  Wootton,  sa3-s, 
"If,  indeed,  that  were  the  case  of  a  joint  bond,  and  not  a  joint  and 
several  bond,  we  have  been  referred  to  no  authority  which  goes  that 
length  ;  it  may  be  that  where  you  sue  and  recover  a  judgment  against 
one  debtor  only,  on  a  contract  which  is  joint  and  not  several,  your  right 
to  sue  on  the  joint  contract  is  destroyed."  That  is,  however,  a  mere 
obiter  dictum.  [Parke,  B.  —  It  is  thus  far  an  authority,  that  if  the 
court  had  thought  the  judgment  was  no  bar,  they  need  not  have  gone 
into  the  case.]  The  action  in  that  case  was  founded  upon  the  new  prom- 
ise made  by  the  defendant  to  pay  his  proportion  of  the  debt,  and  the 
question  to  be  decided  was  irrespective  of  the  validity  of  the  original 
contract,  Atlall  events,  its  authority  depends  upon  the  correctness  of 
the  construction  put  upon  the  sixth  resolution  in  Higgens's  case,  6  Rep. 
44  b.  :  "  And  as  to  the  case  which  has  been  objected,  that  where  two 
are  bound  jointh'  and  severally,  and  the  obligee  has  judgment  against 
one  of  them,  3'et  that  he  may  sue  the  other,  it  was  well  agreed."  The 
reason  of  the  rule  applies  as  strongly  to  a  joint  as  to  a  joint  and  several 
obligation,  and  it  is  laid  down  accordingly  without  qualification  in 
Brown  v.  Wootton,  as  reported  in  Cro.  Jac. ;  and  also  in  Com.  Dig., 
"  Action"  (K.  4).     So,  under  the  same  title  (L.  4),  pi,  2,  it  is  said, 


SECT.    III.]  KTSG   V.   HOARE.  477 

'•As  if  two  be  bound  in  a  bond,  a  recover}'  and  execution  against  one 
is  no  bar  in  an  action  upon  the  same  bond  against  the  other  obligor." 
[Parke,  B. — That  is  merel}'  a  repetition  of  the  old  cases  relating  to 
joint  and  several  bonds.]  The  debt  is  due  equally  from  each  of  the 
joint  debtors,  and  capable  of  recovery  from  each,  unless  he  resort  to 
the  rule  of  law  as  to  the  joinder  of  his  co-contractors,  by  a  plea  in 
abatement.  Whelpdale's  case,  5  Rep.  119  a.  ;  Rice  v.  Shute,  5  Burr. 
2611.  For  some  purposes,  even  as  against  the  part}'  to  the  judgment, 
the  debt  is  still  due,  —  not,  indeed,  for  the  purpose  of  suit,  but  as  to 
the  relation  of  debtor  and  creditor.  Ex  parte  Bryant,  2  Rose,  B.  C.  1  ; 
Bryant  v.  Withers,  2  M.  &  Selw.  123.  [Parke,  B. — Your  argument 
goes  the  length  of  saying  that,  on  every  joint  debt,  it  is  joint  and  sev- 
ral,  just  the  same  as  if  the  debtors  had  jointly  and  severall}-  promised 
to  pay.]  It  is  several  except  for  the  purpose  of  the  joinder  of  par- 
ties in  the  action  ;  and  that  is  a  matter  which  has  always  been  viewed 
with  disfavor  by  the  legislature  and  the  courts,  who  have  afforded  all 
facilities  to  the  suing  of  one  of  the  debtors  onl}'.  Both  owe  the  debt ; 
one  of  them,  if  sued  alone,  ma}*  insist,  b}'  a  particular  proceeding,  on 
the  other  being  joined  in  the  action  ;  but  if  he  do  not,  all  the  remedy  is 
several.  [Alderson,  B.  —  Here  the  plaintiff,  by  bringing  the  action 
against  the  other  debtor,  has  prevented  the  defendant  from  pleading  the 
non-joinder  in  abatement.]  The  judgment  against  the  other  debtor,  for 
all  purposes  except  as  between  the  plaintiff  and  that  debtor,  leaves  the 
nature  of  the  debt  and  the  relation  of  the  parties  as  it  was  before.  As 
to  him  it  is  made  a  several  debt ;  but  for  all  other  purposes  it  remains 
a  joint  debt,  without  any  change  of  the  rights  or  remedies  incident  to 
it.  To  what  class  of  discharge  is  this  to  be  attributed  ?  There  is  no 
estoppel,  no  satisfaction,  no  discharge,  as  to  the  present  defendant,  by 
merger  in  a  higher  securit}'.  By  a  proper  plea  in  abatement,  the  de- 
fendant would  have  barred  this  action  ;  but  by  this  mode  of  pleading 
he  evades  all  the  safeguards  which  the  law  has  applied  to  the  plea  in 
abatement.  The  case  of  the  defendant  depends  upon  this,  that  by  the 
former  judgment  all  the  liability  of  the  then  defendant,  as  a  contracting 
party,  is  gone  ;  if  so,  by  proceeding  under  the  3  &  4  Will.  4,  c.  42,  s. 
10,  there  would  be  a  complete  remed}'  against  the  present  defendant 
for  all  the  costs.  [Alderson,  B.  —  If  parties  make  a  joint  obligation, 
does  it  not  mean  that  the}'  agree  to  be  liable  to  be  jointly  sued  ?  If  a  joint 
and  several  one,  that  the  creditor  may  sue  them  jointly  and  severally, 
to  which  the  law  superadds  this,  that  he  may  sue  one  of  them,  unless 
he  raises  the  defence  of  the  non-joinder  by  plea  in  abatement?  But 
what  principle  can  give  the  creditor,  in  the  case  of  a  joint  obligation, 
several  suits  ?  That  is  contrary  to  the  bargain.]  The  law  says  that  a 
joint  debt  is  a  joint  and  several  debt  for  all  purposes,  except  that  of 
form  in  respect  to  the  plea  in  abatement.  Suppose  one  of  the  joint 
debtors  is  abroad,  is  the  creditor  to  wait  until  he  return,  at  the  risk  of 
losing  his  debt  altogether?  Athough  this  question  has  never  been 
*^irectly  decided  in  the  courts  of  this  country,  there  has  been  an  express 


478  KING   V.    IIOARE.  [CKAr.   IIT. 

decision  on  the  point  in  the  Supreme  Court  of  the  United  States, 
according  to  which  this  plea  is  bad.  Sheehy  v.  Mandeville,  6  Cranch's 
Reports,  253. 

There  are  also  other  formal  objections  to  the  plea.  First,  the  decla- 
ration alleges  a  debt  due  from  the  defendant  alone  ;  the  plea  alleges  a 
joint  debt  from  him  and  Smith,  and  that  is  admitted  by  the  demurrer ; 
but  the  plea  does  not  show  expressh-  that  the  debt  was  not  several  as 
well  as  joint.  [Parke,  B.  —  You  ought  to  have  replied  that ;  it  must  be 
taken  to  be  joint  until  you  show  it  to  be  several  also.  Rolfe,  B.  —  If  it 
were  joint  and  several,  it  would  not  be  true  thnt  Smith  was  sued  for 
"  the  same  identical  causes  of  action  in  the  declaration  mentioned."] 
Secondly,  it  ought  to  have  been  a  plea  in  abatement.  It  will  be  said, 
on  the  authority  of  Mainwaring  v.  Newman,  2  B.  &  P.  120,  and  other 
cases,  that  where  it  will  not  give  a  better  writ,  the  plea  mav  be  in  bar. 
[Parke,  B.  —  Here  it  cannot  give  a  better  writ,  because,  as  to  the  other 
co-contractor,  the  debt  is  merged  in  the  judgment.  Alderson,  B. — 
There  must  be  some  other  action  which  it  is  feasible  to  bring,  after  the 
plea  in  abatement  is  disposed  of.]  Thirdly,  the  plea  ought  to  have 
concluded  with  a  verification  b}'  the  record.  It  is  no  excuse  that  there 
is  also  matter  in  the  plea  that  might  be  tried  in  pais,  the  foundation  of 
the  plea  being  a  judgment.  Lastly,  the  want  of  a  pra3'er  of  judgment, 
which  the  new  rules  speciall}'  preserve  in  cases  of  estoppel,  is  another 
formal  objection. 

Uramwell,  contra.  This  plea  is  good  in  substance  and  in  form. 
With  respect  to  the  first  and  main  ground  of  objection,  two  admissions 
have  been  made  in  the  argument  on  the  other  side,  which  are  fatal  to 
the  plaintiff's  case  :  first,  that  there  could  be  no  good  answer  to  a  plea 
in  abatement  in  this  case ;  at  one  time,  therefore,  according  to  the 
plaintiff's  admission,  the  action  was  not  maintainable  against  the  de- 
fendant, if  he  availed  himself  of  a  plea  in  abatement ;  and  secondl}', 
that  it  cannot  be  denied  that  that  which  is  an  answer  as  to  one  of  the 
joint  debtors,  is  so  as  to  the  other  also  ;  if  that  be  so,  it  inevitabl}-  fol- 
lows that  the  defendant  has  the  same  answer  now,  in  the  manner  in 
which  he  has  pleaded  it.  Suppose  Smith,  the  co-contractor  with  the 
defendant,  had  died  or  gone  abroad  since  the  judgment  was  recovered 
against  him ;  in  that  case  the  defendant  could  not  plead  the  nonjoinder 
in  abatement ;  so  that  it  must  be  argued  that  the  plaintiff,  merely  by 
Smith's  death  or  leaving  the  countr}',  might  acquire  a  right  to  maintain 
the  present  action.  The  plaintiff  is  driven  to  rely  on  the  3  &  4  Will.  4, 
c.  42,  s.  10  ;  but  the  words  of  that  section,  "  not  liable  as  a  contracting 
party  or  parties,"  appl}-  only  to  persons  who  were  not  parties  to  the 
original  contract,  and  therefore  never  could  have  been  sued  as  con- 
tracting parties,  —  not  to  persons  who  were  originallj'^  liable,  but  have 
been  subsequently  discharged.  The  remed}'  given  by  that  statute  there- 
fore, could  not  avail  the  plaintiff  in  this  case.  With  respect  to  tlie  case 
of  Watters  v.  Smith,  it  is  clear  that  the  defendant  who  was  sued  in  that 
tase  could  not,  on  a  plea  in  bar,  rely  on  matter  which  could  onlj'  have 


SECT,   ni.]  KING   V.   HOAKK.  479 

been  the  subject  of  a  plea  in  abatement;  viz.,  either  the  nonjoinder  of 
Hunter,  or  the  pendenc}'  of  the  action  against  him.  In  the  case  in  the 
American  courts,  perhaps  Jameson,  the  person  mentioned  in  the  plea, 
would  have  been  estopped  by  his  promise  to  sa}'  that  he  was  not  severally 
liable.  [Parke,  B. — The  judgment  does  not  proceed  on  that.]  In  Bell 
V.  Bankes,  the  whole  case  proceeded  on  the  ground  of  its  being  assumed 
that  a  recovery  against  one  joint  debtor  bars  the  action  against  the 
other ;  otherwise  it  would  have  been  unnecessarj'  to  go  into  the  other 
facts  of  the  case.  The  question  there  was,  whether  a  judgment  in  favor 
of  trustees  created  a  merger  of  a  right  of  acting  in  favor  of  a  cestui  que 
trust.  The  like  observation  applies  to  Drake  v.  Mitchell,  3  East,  251, 
and  also  to  Lechmere  v.  Fletcher  ;  and  there  can  be  no  doubt,  from  the 
latter  case,  what  was  the  opinion  of  Bayle^',  B.,  on  that  subject.  He 
says:  "If,  on  a  joint  contract,  you  have  sued  one,  and  entered  judg- 
ment against  him,  there  might  be  an  invincible  obstacle,  because,  upon 
a  new  action  against  another  of  the  parties  to  the  contract,  the  defend- 
ant would  have  a  right  to  plead  that  he  made  no  promise  except  with 
the  other  defendant,  against  whom  the  judgment  was  entered,  and  he 
could  not  be  joined."  It  is  undoubtedly  stated  in  Com.  Dig.,  in  the 
place  already  cited,  that  recovery  and  execution  against  one  joint  obli- 
gor is  no  bar  in  an  action  against  the  other ;  but  the  direct  contrary-  is 
Vid  down  immediately  before  (K.  4) :  "A  recovery-  against  one 
obligor,  and  execution,  will  be  a  bar  in  debt  against  the  ot'uer."  The 
difference  is  explicable  \>y  reference  to  the  authorities  relating  respect- 
ively to  joint  and  to  joint  and  several  obligations.  The  distinction  is 
pointed  out  in  Dennis  v.  Payn,  Cro.  Car.  551.  The  principle  is,  that  a 
person  who  enters  a  joint  contract  has  a  right  to  sa}*  he  will  not  be  sued 
but  with  his  co-contractor,  and  the  plaintiff  b}'  his  act  cannot  deprive 
him  of  that  right.  If  the  action  be  brought  against  the  two,  and  it  be 
discharged  as  against  one,  it  is  discharged  also  as  against  both.  That 
proposition  is  unqualified,  except  as  to  personal  discharges  by  statute. 
Seaton  v.  Henson,  2  Lev.  220 ;  Nedham's  case,  8  Rep.  136  a.  How, 
then,  can  the  plaintiff  be  in  a  better  situation  hy  suing  one  of  them  only 
in  the  first  instance  ? 

With  respect  to  the  necessity  of  a  plea  in  abatement,  it  is  strange  to 
say  that  a  defendant,  who  is  bound  to  give  a  better  writ,  must  state  in 
his  plea  that  which  shows  that  no  writ  lies.  Besides,  non  constat  that 
the  defendant  could  plead  in  abatement,  or  could  state  that  Smith  is 
within  the  jurisdiction.  Then,  as  to  the  objection  that  there  is  no  veri- 
fication by  the  record  ;  what  is  it  that  the  defendant  must  have  stated 
that  he  is  read}-  to  verify  by  the  record  ?  —  all  the  facts  before  stated. 
[Parke,  B,  —  Whereas,  on  a  plea  of  judgment  recovered,  'prima  facie 
there  is  one  fact  only  which  is  matter  of  record,  until  the  plaintiff  new 
assigns.]  The  record  would  afford  no  verification  of  this  plea. 
[Parke,  B.  —  As  to  the  praN-er  of  judgment,  that  is  not  necessarj-  by 
the  new  rules  ;  the  plea  does  not  operate  by  way  of  estoppel.] 

Henderson  was  heard  in  reply.  Cur.  adv.  vulU 


480  KING   V.   HOARE.  [CHAP.   HI. 

Pakke,  B.  The  plea  in  this  case,  to  an  action  of  debt,  stated  that 
the  contract  in  the  declaration  was  made  by  the  plaintiff  with  the  de- 
fendant and  one  N.  T.  Smith  jointly,  and  not  with  the  defendant  alone  ; 
and  that,  in  1843,  the  plaintiff  recovered  a  judgment  against  Smith  for 
the  same  debt,  with  costs,  "  as  appears  by  the  record  remaining  in  the 
Court  of  Queen's  Bench,  which  judgment  still  remains  in  full  force  and 
unreversed,"  concluding  with  the  common  verification. 

To  this  plea  there  was  a  demurrer,  assigning  several  special  causes : 
First,  that  it  was  a  plea  in  abatement  not  properly  pleaded  ;  to  which 
the  answer  is,  that  the  plea  does  not  give  a  better  writ,  and  is  clearly  a 
plea  in  bar.  Secondly,  that  it  amounts  to  the  general  issue,  which  it 
certainly'  does  not,  for  it  admits  a  debt  originally  due.  Thirdly,  that 
it  does  not  aver  that  the  debt  was  not-  due  from  the  defendant  and 
Smith  severally,  as  well  as  jointly ;  to  which  it  was  properly  an- 
swered fliat  the  "plea  suflScientlj'  shows  the  identical  contract  de- 
clared upon  to  be  joint,  and  that  it  cannot  be  contended,  prima  facie 
at  least,  that  the  same  contract  was  both  joint  and  several.  And, 
lastly,  it  was  objected  that  the  plea  ought  to  have  concluded  with  a 
verification  by  the  record.  The  court,  however,  intimated  its  opinion 
that  such  an  averment,  though  proper  when  the  plea  contains  matter  of 
record  only,  was  not  proper  where  the  averment  of  matter  of  record 
was  mixed  with  averments  of  matters  of  fact,  on  which  an  issue  of  fact 
may  be  taken.  In  the  case  of  a  plea  of  judgment  recovered  for  the 
same  cause  of  action,  the  matter  of  record  is  the  onl}-  thing  which  can 
be  directly  put  in  issue  on  the  plea.  If  the  judgment  were  recovered 
for  another  cause,  there  must  be  a  new  assignment. 

The  matters  of  form  being  disposed  of,  the  question  is  reduced  to 
one  of  substance  :  whether  a  judgment  recovered  against  one  of  two 
joint  contractors  is  a  bar  in  an  action  against  another. 

It  is  remarkable  that  this  question  should  never  have  been  actually 
decided  in  the  courts  of  this  country.  There  have  been,  apparently, 
conflicting  dicta  upon  it.  Lord  Tenterden,  in  the  case  of  Watters  v. 
Smith,  2  B.  &  Ad.  892,  is  reported  to  have  said  that  a  mere  Judgment 
against  one  would  not  be  a  defence  for  another.  My  brother  Maule 
stated,  in  that  of  Bell  v.  Bankes,  3  Man.  &  G.  267,  that  a  security  by^ 
one  of  two  joint  debtors  would  mp]-ge  the  remedy  against  botET  In  the 
case  of  Lechmere  v.  Fletcher,  1  C.  &  M.  634,  Bayley,  B.,  strongly 
intimates  the  opinion  of  the  Court  of  Exchequer,  that  the  judgment 
against  one  was  a  bar  for  both  of  two  joint  debtors ;  though  the  point 
was  not  actually  ruled,  as  the  case  did  not  require  it.  In  the  absence 
of  SLny  positive  authority  upon  the  precise  question,  we  must  decide  it 
upon  principle,  and  by  analogy  to  other  authorities  ;  and  we  feel  no  diffi- 
cult}'  in  coming  to  the  conclusion  that  the  plea  is  good. 

If  there  be  a  breach  of  contract,  or  wrong  done,  or  an}'  other  cause 
of  action  by  one  against  another,  and  judgment  be  recovered  in  a  court 
of  record,  the  judgment  is  a  bar  to  the  original  cause  of  action,  because 
it  is  thereby  reduced  to  a  certainty,  and  the  obiect  of  the  suit  attained. 


KING   V.   HOARE.  481 

SO  far  as  it  can  be  at  that  stage  ;  and  it  would  be  useless  and  vexatious  to 
subject  the  defendant  to  another  suit  for  the  purpose  of  obtaining  the 
same  result.  Hence  the  legal  maxim,  transit  in  rem  Judicatam,  — 
the  cause  of  action  is  changed  into  matter  of  record,  which  is  of  a 
higher  nature,  and  the  inferior  remedy'  is  merged  in  the  higher.  This 
appears  to  be  equally  true  where  there  is  but  one  cause  of  action, 
whether  it  be  against  a  single  person  or  many.  The  judgment  of  a 
court  of  record  changes  the  nature  of  that  cause  of  action,  and  prevents 
its  being  the  subject  of  another  suit,  and  the  cause  of  action,  being 
single,  cannot  afterwards  be  divided  into  tuo.  Tluis  it  has  been  held 
that  if  two  com^t  a  joint^torVthe  judgment  against  one  is,  of  itself, 
"without  execution,  a  sufficient  banb~ah  actib^~  against  the  other  for 
tGe  samecause.^  Brown  v.  Wootton,  Yelv.  67;  and  s.  c. ,  Cro.  Jac. 
73  ;  and  Moor,  762.  And  though,  in  the  report  in  Yelverton,  expres- 
sions are  used  which  at  first  sight  appear  to  make  a  distinction  between 
actions  for  unliquidated  damages  and  debts,  yet  upon  a  comparison  of 
all  the  reports,  it  seems  clear  that  the  true  ground  of  the  decision  was 
not  the  circumstance  of  the  damages  being  unliquidated.  Chief  Justice 
Popham  states  the  true  ground.  He  saj's,  "If  one  hath  judgment  to 
recover  in  trespass  against  one,  and  damages  are  certain  "  (that  is, 
converted  into  certainty  b}' the  judgment),  "  although  he  be  not  satisfied, 
3"et  he  shall  not  have  a  new  action  for  this  trespass.  B}'  the  same 
reason,  e  contra,  if  one  hath  cause  of  action  against  two,  and  obtain 
judgment  against  one,  he  shall  not  have  remedy  against  the  other ;  and 
the  difl"erence  betwixt  this  case  and  the  case  of  debt  and  obligation 
against  two  is,  because  there  ever^'  of  them  is  chargeable,  and  liable  to 
the  entire  debt ;  and  therefore  a  recoverj'  against  one  is  no  bar 
against  the  other,  until  satisfaction."  And  it  is  quite  clear  that  the 
Chief  Justice  was  referring  to  the  case  of  a  joint  and  several  obligation, 
both  from  the  argument  of  the  counsel,  as  reported  in  Cro.  Jac,  and 
the  statement  of  the  case  in  Yelverton. 

"We  do  not  think  that  the  case  of  a  joint  contract  can,  in  this  respect, 
be  distinguished  from  a  joint  tort.  There  is  but  one  cause  of  action  in 
each  case.  The  party  injured  may  sue  all  the  joint  tort-feasors  or  con- 
tractors, or  he  may  sue  one,  subject  to  the  right  of  pleading  in  abate- 
ment in  the  one  case,  and  not  in  the  other ;  but,  for  the  purpose  of  this 
decision,  they  stand  on  the  same  footing.  Whether  the  action  is  brought 
against  one  or  two,  it  is  for  the  same  cause  of  action. 

The  ^istitjction  between  the  case  of  a  joint  and  several  contract_i8 
vpry  c^^p^\x;.  \t  is  argued  that  each  party  to  a  joint  contract  is  severally 
liable.,  and  so  he  is  in  one  sense,  that  if  sued  severally,  and  he  does  not 
plead  in  abatement,  he  is  IFabTe  to  pay  the  entire~d«^bf. ;  \-^\\[  he  is  not 
sevfirally  liable  in  the  same  sense  as  he  is  on  a  joint  and  several  bond^ 
which  instrument,  though  on  one  piece  df^^archment  or  paper,  in  effect 
comprises  the  joint  bond  of  all,  and  the  several  bonds  of  each  of  the 
obligors,  and  gives  different  remedies  to  the  obligee.  Another  mode 
of  considering  this  case  is  suggested  by  Bayley,  B.,  in  the  case  of  Lech- 
voL.  I.  —  ;ji 


482  KING   V.   HOARB.  [CHAP.   HI. 

mere  v.  Fletcher,  and  was  much  discussed  during  the  argument,  and 
leads  us  to  the  same  conclusion.  If  there  be  a  judgment  against  one  of 
two  joint  contractors,  and  the  other  is  sued  afterwards,  can  he  plead  in 
abatement,  or  not?  If  he  cannot,  he  would  be  deprived  of  a  right  b}- 
the  act  of  the  plaintiff,  without  his  privity  or  concurrence,  in  suing  and 
obtaining  judgment  against  the  other.  If  he  can,  then  he  may  plead 
in  bar  the  judgment  against  himself;  and  if  that  be  not  a  bar,  the  plain- 
tiff might  go  on,  either  to  obtain  a  joint  judgment  against  himself  and 
his  CO- con  tractor,  so  that  he  M'ould  be  twice  troubled  for  the  same  cause  ; 
or  the  plaintiff  might  obtain  another  judgment  against  the  co-contractor, 
so  that  there  would  be  two  separate  judgments  for  the  same  debt. 
Further,  the  case  would  form  another  exception  to  the  general  rule,  that 
an  action  on  a  joint  debt,  barred  against  one,  is  barred  altogether ;  the 
only  exception  now  being  where  one  has  pleaded  matter  of  personal 
discharge,  as  bankruptcy  and  certificate.  It  is  quite  clear,  indeed,  and 
was  hardly  disputed,  that  if  there  were  a  plea  in  abatement,  both  must 
be  joined,  and  that  if  they  were,  the  judgment  pleaded  by  one  would  be 
a  bar  for  both  ;  and  it  is  impossible  to  hold  that  the  legal  effect  of  a 
judgment  against  one  of  two  is  to  depend  on  the  contingency  of 
both  being  sued,  or  the  one  against  whom  judgment  is  not  obtained 
being  sued  singly,  and  not  pleading  in  abatement.  These  considera- 
tions lead  us,  quite  satisfactorily  to  our  own  minds,  to  the  conclusion 
that  wJiere  judgment  has  been  obtained  for  a  debt,  as  well  as  a  tort,  the 
right  given  b}'  the  record  merges  the  inferior  remedy  by  action  for  the 
same  debt  or  tort  against  another  party. 

During  the  argument,  a  decision  of  the  Chief  Justice  Marshall,  in  the 
Supreme  Court  of  the  United  States,  was  cited  as  being  contrary  to 
the  conclusion  this  court  has  come  to ;  the  case  is  that  of  Sheeh}'  v. 
Mandeville.  We  need  not  say  we  have  the  greatest  respect  for  every 
decision  of  that  eminent  judge,  but  the  reasoning  attributed  to  him  by 
that  report  is  not  satisfactory  to  us  ;  and  we  have  since  been  furnished 
with  a  report  of  a  subsequent  case,  in  which  that  authority  was  cited 
and  considered,  and  in  which  the  Supreme  Judicial  Court  of  Massachu- 
setts decided  that,  in  an  action  against  two  on  a  joint  note,  a  judgment 
against  one  was  a  bar.     Ward  v.  Johnson,  13  Mass.  148. 

For  these  reasons  we  are  of  opinion  that  our  judgment  must  be  for 
the  defendant.  Judgment  for  the  defendant, 

1  Mason  v.  Eldred,  6  Wall.  231  (overruling  Sheehy  r.  Mandeville,  6  Cranch,  254) ; 
Trafton  v.  United  States,  3  Story,  651  ;  Brady  v.  Reynolds,  13  Cal.  31 ;  Wann  v. 
McNulty,  2  Gilm.  359  ;  Moore  v.  Rogers,  19  111.  347  ;  Crosby  v.  Jeroloman,  37  Ind. 
264;  Ward  v.  Johnson,  13  Mass.  148;  Cowley  u.  Patch,  120  Mass.  137;  Davison  w.' ' 
Harmon,  C5  Minn.  402;  Robertson  v.  Smith,  18  Johns.  459;  Candee  i-.  Smith,  93 
N.  Y.  349  ;  Smith  v.  Black,  9  Serg.  &  R.  142,  ace.  But  otherwise  by  statute  in  many- 
jurisdictions.     The  law  in  each  state  is  separately  considered  in  a  note  in  43  L.  R.  A. 


cu^H 


SECT,   ill]  KEIGHTLEY   V,   WATSON.  483 


KEIGHTLEY  v.  WATSON  and  another. 
In  the  Exchequer,  April  27,  1849. 

[Reported  in  3  Exchequer,  716.] 

Covenant  upon  an  indenture  of  the  27th  of  November,  1844,  made 
between  one  A.  A.  Dobbs  of  the  first  part,  the  plaintiff  of  the 
second  part,  and  the  defendants  and  one  Jerome  Smith,  since  deceased, 
of  the  third  part  (profert).  The  declaration,  after  reciting  certain 
matters  in  the  deed,  and  setting  out  certain  covenants  hereinafter  ex- 
pressly stated,  and  the  necessary  averments  of  performance,  &c., 
alleged  as  a  breach  the  non-payment  by  the  defendants  to  the  plaintiff 
of  certain  interests  on  a  part  of  the  purchase-money  of  certain  lands, 
&c.,  payable  by  virtue  of  that  instrument. 

The  defendants,  having  craved  oyer  of  the  deed,  set  it  out  in  their 
plea  verbatim.  The  deed,  after  reciting  an  indenture  entered  into  by 
the  defendants  and  plaintiff  and  Dobbs,  whereby  the  latter  agreed  to 
purchase  of  the  plaintiff  certain  parcels  of  land  and  tenements,  and 
after  reciting  that  Dobbs  had  agreed  with  the  defendants  and  Smith  to 
sell  them  the  said  several  parcels  of  land  and  tenements,  stated  that 
each  of  the  parties  thereto,  so  far  as  related  to  the  acts  and  deeds 
on  his  own  part  to  be  performed,  did  thereb}'  for  himself,  his  heirs,  &c., 
covenant  and  agree  with  the  other  of  them  that  Dobbs  should  sell,  and 
the  defendant  and  Smith  should  purchase,  the  said  parcels  of  land 
(describing  them)  at  the  sum  of  £7335,  to  be  paid  bj*  the  defendants 
and  Smith  by  the  payment  of  £900  upon  the  execution  of  the  deed,  and 
£6435  on  the  27th  of  November,  1851 ;  and  that  Dobbs  should  then, 
or  within  a  month  after  notice,  deliver  to  the  defendants  and  Smith  an 
abstract  of  his  title,  &c.  The  deed  then  proceeded  to  state  that  Dobbs 
covenanted  "  that  he,  and  that  all  other  necessar}'  conveying  parties, 
&c.,  should,  on  payment  on  the  27th  of  November,  1851,  of  the  said 
sum  of  £6435,  remainder  of  the  said  purchase-mone}'  as  aforesaid, 
execute  a  proper  conveyance  of  the  said  hereditaments,  &c.,  unto  the 
defendants  and  Smith,"  &c. 

Then  followed  the  covenant  upon  which  the  present  action  was 
brought:  "And  the  said  R.  Watson,  H.  Watson,  and  J.  Smith,  for 
themselves,  their  heirs,  executors,  and  administrators,  hereby  covenant 
with  the  said  W.  T,  Keightley,  his  executors,  administrators,  and 
assigns,  aad_^  as  a  sepai:^e  covenant  with  the  said  A.  A.  Dobbs,  his 
executors,  administrators,  and  assigns,  that  the}'  the  said  R.  Watson, 
H.  Watson,  and  J.  Smith,  their  heirs,  executors,  administrators,  and 
assigns,  shall  on  performance  of  the  covenant  and  agreement  hereinbe- 
fore continued  on  the  part  of  the  said  A.  A.  Dobbs,  pa}'  to  the  said 
W.  T.  Keightlev,  his  executors,  administrators,  or  assigns,  or  to  the_ 


484  KEIGHTLEY   V.    WATSON.  [CHAP.    III. 

said  A.  A.  "r)ohl>s.  his  executors,  administrators,  or  assigns,  in  case 
the  said  W .  T.  Keigbtley,  his  executors,  administrators,  or  assigns, 
shall  then  have  been  paid  his  or  their  purchase-mone}',  payable  by 
virtue  of  the  said  in  part  recited  contract,  the  sum  of  £6435,  being  the 
remainder  of  the  said  purchase-raone}',  on  or  before  the  27th  daj-  of 
November,  1851  ;  and  further  that  the  said  R.  Watson,  H.  Watson,  J. 
Smith,  their  heirs,  executors,  administrators,  or  assigns,  shall,  in  the 
meantime,  and  until  the  whole  of  the  said  sum  of  £6435  shall  be  paid 
oft,  pay  to  the  said  W.  T.  Keightle}-,  his  executors,  administrators,  and 
assigns,  interest  on  so  much  of  the  purchase-mone\"  as  shall  from  time 
to  time  remain  unpaid,  at  the  rate  of  £5  per  cent  per  annum  from  the 
date  of  these  presents,  by  equal  half-yearly  payments,  on  the  27th  of 
May  and  27th  of  November  in  each  year  ;  the  first  payment  of  the  said 
interest  to  be  made  on  the  27th  day  of  Ma}'  next." 

The  deed  then  contained  a  covenant  by  Dobbs  with  the  defendants 
and  J.  Smith,  as  to  making  certain  sewers,  with  certain  provisions 
respecting  them  ;  with  a  proviso  that  the  defendants  and  J.  Smith  should 
be  entitled  to  immediate  possession  of  the  premises,  and  that  they  should 
be  entitled  to  an  absolute  conveyance  of  any  portion  upon  the  pa3'ment 
of  a  certain  sum  per  square  yard,  in  case  W.  T.  Keightley  had  been 
paid  all  that  was  due  to  him,  &c.  There  was  also  a  covenant  with  a 
power  of  sale  to  Dobbs  upon  non-pa3-ment  of  interest  or  principal,  with 
a  certain  proviso  as  to  compensation  for  mistake  in  quantit}'.  Then 
followed  a  covenant  by  the  plaintiff  that  he  would  not  exercise  his 
power  of  sale  under  the  contract  with  Dobbs,  until  default  in  payment 
by  the  defendants  of  interest  or  principal ;  and  for  conveyance  of 
portions,  if  required,  according  to  the  provisions  of  the  deed  ;  and  that 
the  plaintiff  would  apply  all  moneys  received  from  the  defendants  and 
J.  Smith  in  pait  payment  of  the  debt  due  from  Dobbs. 

General  demurrer,  and  joinder. 

The  defendants'  point  for  argument  was,  that  the  declaration  was 
bad,  on  the  ground  that  the  said  A.  A.  Dobbs,  one  of  the  parties  to 
the  deed,  was  not  joined  in  the  action  as  a  co-plaintiff. 

Cowling,  in  support  of  the  demurrer. 

Crompton^  contra. 

Pollock,  C.  B.  I  am  of  opinion  that  in  this  case  the  plaintiff  is 
entitled  to  the  judgment  of  the  court.  I  consider  that  the  inquiry 
really  is  as  to  the  true  meaning  of  the  covenant,  at  the  same  time 
bearing  in  mind  the  rule  —  a  rule  which  I  am  by  no  means  willing  to 
break  in  upon  —  that  the  same  covenant  cannot  be  treated  as  joint  or 
several  at  the  option  of  the  covenantee.  If  a  covenant  be  so  con- 
structed as  to  be  ambiguous,  that  is,  so  as  to  serve  either  the  one  view 
or  the  other,  then  it  will  be  joint  if  the  interest  be  joint,  and  it  will  be 
several  if  the  interest  be  several.  On  the  other  hand,  if  it  be  in  its 
terms  unmistakably  joint,  then  although  the  interest  be  several,  all  the 
parties  must  be  joined  in  the  action.  So,  if  the  covenant  be  made 
clearly  several,  the  action  must  be  several,  although  the  interest  be 
joint.     It  is  a  question  of  construction.     What,  then,  in  this  case,  did 


SECT.   III.]  KEIGHTLEY   V.    WATSON.  485 

the  parties  mean?  The  words  of  the  covenant  are,  "  And  the  said  R. 
Watson,  H.  Watson,  and  J.  Smith,  for  themselves,  their  heirs,  exec- 
utors, and  administrators,  hereby  covenant  with  the  said  W.  T. 
Keightley,  his  executors,  administrators,  and  assigns,  and  as  a  separate 
covenant  with  the  said  A.  A,  Dobbs,  his  executors,  administrators,  and 
assigns,  that  the}'  "  will  do  so  and  so.  If  I  am  to  put  a  construction 
upon  that,  I  should  say  that  it  is  intended  to  be  a  several  or  separate 
covenant.  In  the  case  of  Hopkinson  v.  Lee,  it  seems  to  have  been 
understood  at  one  time  b}'  this  court  that  there  were  joint  words. 
There  are  certainly  none.  But  the  nature  of  the  interest,  upon  look- 
ing into  that  particular  case,  may  possibly  justify  that  decision.  The 
words  of  this  instrument  are  several,  and  its  terms  disclose  a  several 
interest ;  the  covenant,  therefore,  must  be  construed  according  to  the 
words,  as  a  several  covenant,  and  it  appears  to  me  that  the  words  used 
by  the  parties  were  intended  to  create  such  a  covenant.  I  think,  there- 
fore, that  the  plaintiff  is  entitled  to  sue  alone. 

Parke,  B.  I  am  entirel}-  of  the  same  opinion  with  the  Lord  Chief 
Baron.  With  respect  to  the  rule  of  law  on  this  question,  I  apprehend 
that  there  is  no  doubt  about  it.  That  rule  was  correctly  laid  down  by 
Lord  Chief  Justice  Gibbs,  in  the  case  of  James  v.  Emerj',  5  Price,  533, 
as  taken  with  the  qualification  annexed  to  it  by  Mr.  Preston,  which  is 
to  be  found  in  his  edition  of  the  "  Touchstone."  That  qualification 
was  adopted  by  Lord  Abinger,  C.  B.,  and  myself,  in  the  case  of  Sorsbie 
V.  Park,  12  M.  &  W.  156,  158  ;  and  I  apprehend  that  the  Court  of 
Queen's  Bench  misunderstood  us  in  the  interpretation  which  the}-  put 
upon  that  rule,  as  there  laid  down  by  us.  I  had  reason  to  explain  the 
matter  afterwards  at  some  length,  in  the  case  of  Bradburne  v.  Botfield, 
in  which  I  pointed  out  that  neither  Lord  Abinger  nor  m^-self  had  the 
least  intention  of  interfering  with  Anderson  v.  Martindale,  or  with  an}-  of 
the  decided  cases.  The  rule  that  covenants  are  to  be  construed  accord- 
ing to  the  interest  of  the  parties,  is  a  rule  of  construction  merely,  and 
it  cannot  be  supposed  that  such  a  rule  was  ever  laid  down  as  could 
prevent  parties,  whatever  words  they  might  use,  from  covenanting  in 
a  different  manner.  It  is  impossible  to  say  that  parties  may  not,  if 
they  please,  use  joint  words,  so  as  to  express  a  joint  covenant,  and 
thereby  to  exclude  a  several  covenant,  and  that,  because  a  covenant 
may  relate  to  several  interests,  it  is  therefore  necessarily  not  to  be 
construed  as  a  joint  covenant.  If  there  be  words  capable  of  two  con- 
structions, we  must  look  to  the  interest  of  the  parties  which  they  in- 
tended to  protect,  and  construe  the  words  according  to  that  interest.  I 
apprehend  that  no  case  can  be  found  at  variance  with  that  rule,  unless 
Hopkinson  v.  Lee  may  be  thought  to  have  a  contrary  aspect.  During 
the  course  of  the  argument  in  Bradburne  i\  Botfield,  I  certainly  was 
under  the  impression,  from  reading  the  case  of  Hopkinson  v.  Lee,  that 
there  were  in  that  case  words  capable  of  such  a  construction  as  to  make 
the  covenant  a  joint  covenant.  If  that  had  been  so,  then  the  words 
subsequently  introduced  would  not  have  made  it  several,  unless  there 
had  also  been  an  interest  in  respect  of  which  it  could  be  several,  accord- 


486  KEIGHTLEY   V.   WATSON.  [CHAP.    in. 

ing  to  the  rule  referred  to  bj'  the  Lord  Chief  Baron,  as  laid  down  in 
Slingsby's  case,  that  it  is  not  competent  to  the  court  to  hohi  the  same 
covenant  joint  or  several  at  the  option  of  the  covenantee.  Now  we 
are  to  apph'  the  above-mentioned  rule  to  the  case  before  the  court,  and 
to  see  whether  the  present  covenant  is  a  separate  covenant  with  the 
plaintiff  alone,  or  a  joint  covenant  with  the  plaintiff  and  Dobbs,  who  has 
not  been  joined  in  the  action.  I  think  that  there  is  no  difHculty  in  sa}-- 
ing  that  it  is  a  separate  covenant  with  the  plaintiff  alone,  that  there 
are  no  words  to  constitute  it  a  joint  covenant,  and  that  the  matters 
therein  mentioned  are  capable  of  being  understood  as  composing  two 
different  covenants,  relating  to  two  different  interests,  the  one  in  which 
Keightley  is  concerned,  and  the  other  in  which  Dobbs  is  concerned. 
The  covenant  is  this  :  "  The  defendants,  for  themselves,  their  heirs,  exe- 
cutors, and  administrators,  covenant  with  Keightley,  his  executors, 
administrators,  and  assigns  ;  and  as  a  separate  covenant,"  —  not  "  and 
with  A.  A.  Dobbs,"  —  '"and  as  a  separate  covenant  with  A.  A.  Dobbs, 
his  executors,  «fec."  [His  Lordship  read  the  covenant  and  proceeded.] 
Now  in  this  case  there  are  two  separate  interests,  to  be  provided  for  by 
these  separate  covenants ;  and  in  this  respect  the  case  differs  entirely 
from  that  of  Hopkinson  v.  Lee,  because  upon  looking  at  the  context  in 
that  case,  there  was,  in  truth,  only  one  joint  interest  to  be  protected.  It 
was  the  money  of  one  which  the  other  had  advanced.  But  in  the  present 
case  there  are  clearly  two  distinct  and  separate  interests  to  be  protected 
by  the  covenant :  one  is  Keightley's  interest  in  the  principal,  until  he 
shall  have  been  i)aid  off  by  Dobbs,  in  which  case  Dobbs  would  have  to 
receive  the  wiiole  of  the  purchase-money  ;  and,  if  he  should  be  paid  off 
by  Dobbs,  then  a  separate  interest  in  Dobbs  to  receive  the  purchase- 
money,  or  balance  of  the  purchase-money,  on  the  day  when  the  purchase 
should  be  completed.  These  are  two  distinct  and  separate  interests. 
Then,  there  being  in  this  case  no  joint  words,  it  is  obvious  that  the 
parties  meant  these  to  be  two  covenants  in  respect  of  their  separate  in- 
terests, and  they  ought  to  be  so  construed.  Then  comes  that  branch  of  the 
covenant  upon  which  the  action  is  brought,  namely,  to  pay  the  interest 
in  the  mean  time.  Now,  that  is  a  covenant  to  pay  interest  to  Keightlej' 
in  the  mean  time.  It  is  obvious  that  he  is  the  person  who  is  intended 
to  receive  it.  And,  in  the  next  place,  there  is  no  provision  as  to  what 
is  to  be  done  in  case  Keightley  is  paid.  It  seems  to  me  to  be  quite 
clear  that  the  parties  mean  that  Keightley  is  to  receive  the  interest  on 
his  own  account,  until  he  be  paid  off,  and  if  he  should  be  paid  off  the 
the  principal  113-  Dobbs,  then  that  he  is  to  receive  the  interest  of  the 
purchase-money  as  trustee  for  Dobbs,  until  the  principal  is  paid  off. 
Looking,  therefore,  at  the  interest  of  the  parties,  as  it  appears  from  the 
context,  we  are  not  only  able,  but  called  upon,  according  to  the  express 
words,  to  construe  this  to  be  a  separate  covenant.  If  there  had  been 
words  importing  a  joint  covenant  with  the  plaintiff  and  Dobbs  as  to  the 
principal  money,  I  should  have  felt  considerable  difficulty  in  saying  that 
an  action  for  interest  must  not  have  been  brought  by  both,  because  in 


SECT,    in.]  KEIGHTLEY   V.    WATSON.  487 

that  case  there  would  have  been  an  interest  which  the  joint  covenant 
would  protect,  although  with  regard  to  the  other  part,  there  would  not 
have  been  an}'  such  joint  interest.  But  the  absence  of  any  words  to 
constitute  a  joint  covenant  is  a  strong  argument  with  me  that  it  was 
the  intention  of  the  parties  that  at  all  events,  when  the  contingency 
should  happen  of  the  principal  being  paid  off,  the  interest  was  to  be 
paid  to  Keightley,  and  that  he  was  the  person  to  sue,  if  that  were  not 
paid.  Without  an}-  further  observations  upon  the  case  of  Hopkinson  v. 
Lee,  it  seems  to  me  that  the  present  case  is  clearly  distinguishable  from 
it,  because  on  the  face  of  this  instrument  the  parties  have  separate  in- 
terests ;  so  that  we  are  called  upon  to  construe  a  separate  covenant 
according  to  the  precise  words  of  it.  I  feel  no  difficult}-  in  saying 
that  the  rule  which  we  adopted  in  Bradburne  v.  Botfield  is  the  correct 
one ;  I  think  it  is  impossible  to  doubt  the  rule  to  be  one  of  construction 
merely,  and  that,  like  all  other  rules  of  construction,  it  must  bend  to 
express  words.  It  cannot  hp.  snppnspd  ti|n|.  there  can  be  any  intention 
on  the  part  of  the  court  to  force  parties  to  do  a  .joint  act  when  the\'  in- 
tended to  do  a  sepnrntp  ani-.,  r>r  tr,  An  «^,  cpparatc  act  when  they  intended 
tr>_dn  n  jnjnt,  nft,  f^nr]  in  piflipf  oa!je__liavc  clearly  expressed  such 
intention. 

KoLFE,  B.  I  am  of  the  same  opinion.  It  seems  to  me  that  the 
question  turns  entirely  upon  the  rule,  as  stated  by  my  brother  Parke, 
which  was  distinctly  laid  down  b}-  this  court  in  the  cases  cited,  and  in 
which  I  fully  concur.  It  appears  to  me  that  Mr.  Preston's  suggestion 
was  perfectly  well  founded,  that  the  rule  in  Slingsby's  case  was  not  a 
rule  of  law,  but  a  mere  rule  of  construction.  From  that  case  it  appears 
that,  if  a  covenant  be  cum  quolibet  et  qualibet  eorum,  that  may  be 
either  a  joint  or  several  covenant,  and  it  will  depend  upon  the  context 
whether  it  is  to  be  taken  as  a  joint  or  several ;  but  it  cannot  be  both. 
The  rule  given  in  Slingsb3''s  case  is  not  very  satisfactory  to  my  mind, 
namely,  with  regard  to  the  difficulty  which  arises  as  to  the  proper 
person  to  recover  damages.  If  a  party  choose  to  enter  into  a  covenant 
which  creates  such  a  difficulty,  I  do  not  see  what  the  court  has  to  do 
with  it.  It  is  clear  that  parties  can  so  contract  b}*  separate  deeds  ; 
why,  then,  should  they  not  be  able  equally  to  do  so  by  separate  cove- 
nants in  the  same  deed?  If  the}'  so  word  one  covenant  as  to  make  it 
a  joint  and  separate  covenant,  had  it  not  been  otherwise  decided,  I 
confess  I  should  have  seen  nothing  extraordinary  in  holding  that  if 
they  choose  so  to  contract  as  to  impose  upon  themselves  that  burthen, 
and  state  it  to  be  both  joint  and  several,  the  court  ought  so  to  construe 
it.  But  Slingsby's  case  has  laid  down  the  opposite  rule.  I  take  it 
that  from  tliat  time  the  rule  has  always  been  —  whether  distinctly  ex- 
pressed or  not  it  is  not  necessary  to  consider  —  but  the  rule  has  been 
that  you  are  to  look  and  see  from  the  context  what  the  parties  meant. 
Applying  that  rule  here,  I  see  no  doubt  about  the  question.  Xliey 
have  said  in  terms;  that  it  is  to  be  a  separate  covenant.  According 
to  the  other  construction,  if  Dobbs  had  satisfied  IveightTey,  anH^Dobbs 


488  KEIGHTLEY   V.    WATSON.  [CHAP.   IlL 

had  died,  Keightley  might  have  to  sue  for  the  money  coming  to  Dobbg, 
or  vice  versa;  or  suppose  Dobbs  had  not  satisfied  Keigbtle}-,  and 
Keightley  died,  Dobbs  would  have  had  to  sue  for  the  money  coming 
to  Keightley's  representatives.  It  is  clear  that  is  not  what  the  parties 
meant.  They  have  expressed  tliemselves  in  words  showing  it  was  to 
be  a  separate  covenant  with  each,  and  I  think  we  should  so  hold  it ; 
consequently  the  plaintiff  is  entitled  to  our  judgment. 

Platt,  B.  It  appears  liy  the  recitals  in  this  deed  that  Dobbs  had 
purchased  certain  lands  of  Keightley,  and  that  Dobbs  sold  the  same 
land  for  £7335  to  the  defendants,  but  that  inasmuch  as  at  that  time 
Dobbs,  not  having  paid  his  purchase-money  to  Keightley,  was  not  in 
possession  of  the  conveyance  of  the  land,  it  then  became  necessary 
that  the  second  vendees  should  have  the  security  of  the  first  vendor, 
in  order  to  have  an  additional  chance  of  receiving  the  title  which  they 
ought  to  have  upon  payment  of  the  money,  and  that  accordingly  this 
contract  was  entered  into.  What,  then,  is  to  be  provided  for?  Why, 
undoubtedly,  Dobbs  is  to  be  paid  his  monej',  but  Keightley,  at  the 
same  time,  would  not  have  entered  into  this  deed,  unless  he  saw  his 
way  to  the  security  of  the  money  to  be  paid  by  Dobbs :  these  are 
the  reasons  for  this  covenant.  The  covenant  is  expressly  for  the  pro- 
tection of  Keightley  in  the  first  instance,  because  Watson  and  Smith 
do  thereby  covenant  with  Keightle^^  and  as  a  separate  covenant  with 
Dobbs,  that  they  will  pay  to  Keightley.  It  is  to  pay  Keightley  the 
purchase-mone\-,  unless  Dobbs  has  already  paid  the  mone3-  himself, 
and  in  the  event  of  his  having  paid  it,  then  the  purchase-money 
is  to  be  paid  to  Dobbs,  but  only  in  that  event.  Then  the  deed 
goes  on  to  state  that,  until  the  money  is  paid  to  the  person  who  is 
kept  out  of  it,  interest  upon  it  shall  be  paid  to  him.  It  is  plain  that 
the  interest  of  Keightley  was  quite  separate  from  that  of  Dobbs.  Then, 
if  the  interest  is  separate,  and  we  find  distinct  language  in  the  cove- 
nant separating  the  obligation  of  the  one  from  the  obligation  of  the 
other,  is  the  court  to  say  that  this  is  a  joint  covenant?  If  any 
language  can  be  used  stronger  than  another,  it  is  that  which  is  used 
on  the  present  occasion,  because  it  is  stated  to  be  a  separate  and  not  a 
joint  covenant  with  Dobbs,  plainly  showing  that  the  covenant  with 
Dobbs  is  intended  to  be  entirely  separated  from  that  with  Keightley ; 
and  inasmuch  as  there  is  no  rule  of  law  which  precludes  parties  from 
entering  into  contracts  of  this  kind,  why,  therefore,  should  not  the 
court  give  effect  to  it?  It  seems  to  me  that,  upon  the  whole,  the 
plaintiff  is  clearly  entitled  to  the  judgment  of  the  court. 

Judgment  for  the  plaintiff , 


SECT,    in.]  KENDALL   V.    HAMILTON.  489 


HENRY  J.   B.  KENDALL  and  others,  Appellants, 
V.  PETER  HAMILTON,  Respondent. 

In  the  House  of  Lords,  May  26  —  July  28,  1879. 

[Reported  in  4  Appeal  Cases,  504.] 

Lord  Blackburn.*  My  Lords,  in  this  case  the  plaintiffs  entered  into 
transactions  with  the  firm  of  Wilson,  McLay,  &  Co.,  then  consisting  of 
two  persons,  Matthew  Wilson  and  Joseph  Corrie  Shutters  McLay. 
They,  at  the  request  of  that  firm,  and  in  consequence  of  contracts 
made  with  that  firm,  accepted  bills  and  entered  into  other  transactions, 
the  result  of  which  was  that  a  large  sum  was  owing  to  the  plaintiffs  for 
which  they  might  have  maintained  an  action  for  money  lent  against 
those  two  persons. 

The  plaintiffs  did  not,  at  the  time  when  they  entered  into  the  con- 
tracts which  resulted  in  this  cause  of  action,  know  that  any  other  per- 
son was  interested  in  the  contracts ;  they  dealt  with  Wilson  &  McLa}-, 
and  with  them  alone,  and  gave  credit  to  them  alone.  But  afterwards 
(in  the  view  which  I  take  of  the  case,  it  is  immaterial  when)  the  plain- 
tiffs discovered  that  the  defendant  Hamilton  had  agreed  to  share  with 
Wilson  &  McLay  in  certain  adventures  which  would  require  the  advance 
of  money,  and  that  '"the  financial  arrangements  should  be  managed" 
by  Wilson  &  McLay. 

This  amounted  to  an  authority  to  Wilson  &  McLay  to  borrow  money 
for  the  joint  account  of  Wilson,  McLa}',  &  Hamilton,  who  were  the 
undisclosed  principals  of  Wilson  &  McLa}'  in  the  contract  of  loan. 
And  it  is,  I  think,  now  firml}'  established  as  law  that  a  person  entering 
into  a  contract  with  one  to  whom,  and  to  whom  alone  he  trusted,  may, 
on  discovering  that  the  contractor  really  had  a  principal,  though  he 
neither  trusted  to  him  nor  gave  credit  to  him,  nor  even  knew  of  his 
existence,  charge  that  principal,  unless  something  has  happened  to  pre- 
vent his  doing  so.  He  is  not  bound  to  do  so.  In  the  present  case 
Wilson  &  McLay  could  not,  if  sued  before  the  Judicature  Acts,  have 
pleaded  in  abatement  the  non-joinder  of  Hamilton  ;  nor  if  Wilson  & 
McLay  had  sued  the  plaintiffs  could  they  have  resisted  a  set-off  of  the 
monej-  lent  to  them,  on  the  ground  that  in  borrowing  it  they  were  agents 
for  a  concealed  principal. 

I  will  consider  how  this  case  would  have  stood  at  law  before  the 
Judicature  Acts,  and  then  inquire  what  diflterence  these  acts  make.  I 
take  it,  for  the  reasons  I  have  given,  to  be  clear  that,  under  such  circum- 
stances as  exist  in  the  present  case,  the  now  plaintiffs  might  have  main- 

1  The  Lord  Chancellor,  (Earl  Cairns)  and  Lords  Hatherly,  O'Haoan,  Sei.- 
BORNE,  and  Gordon  delivered  concurring  opinions.  Lord  Tenzance  dissented  on  the 
ground  that  the  Judicature  Acts  had  changed  the  common  law. 


490  KENDALL   V.   HAMILTON.  [CHAP.    III. 

tained  an  action  for  inone}-  lent  against  Hamilton,  on  the  ground  that 
he,  jointly  with  Wilson  &  McLa}',  being  undisclosed  principals  to  Wil- 
son &  McLa3',  was,  as  such,  liable  to  the  plaintiffs.  But  the  facts  are 
such  that  Hamilton  could  have  proved  a  plea  that  the  contract,  on 
which  he  was  sued,  was  made  by  the  plaintiffs  with  the  defendant  and 
Wilson  &  McLay,  jointly,  and  not  with  the  defendant  alone,  and  that 
the  plaintiffs,  before  action,  had  recovered  judgment  against  Wilson  & 
McLa}'  for  the  same  loan  upon  the  same  contract.  And  then  the  ques- 
tion w^ould  have  arisen,  whether  a  judgment  recovered  against  one  or 
more  of  several  joint  contractors  was  (without  satisfaction)  a  bar  to  an 
action  against  another  joint  contractor  sued  alone.  The  decision  in 
King  'V.  Hoare,  13  M  &  W.  494,  was  that  it  is  a  bar. 

I  have  already  said  that,  in  my  view  of  the  matter,  it  was  immaterial 
when  the  plaintiffs  first  discovered  that  thej'  had  a  right  to  have  this 
recourse  against  Hamilton,  which  they  had  never  bargained  for,  and 
which  was  to  them  a  piece  of  pure  good  luck.  If  the  principle  on  which 
King  ??.  Hoare,  13  M.  &  W.  494,  was  decided  had  been  that,  by  suing 
some  he  had  elected  to  take  them  as  his  debtors  to  the  exclusion  of 
those  whom  he  had  not  joined  in  tlie  action,  it  would  be  material ; 
for  I  assent  to  the  argument  that  there  cannot  be  election  until  there 
is  knowledge  of  the  right  to  elect.  But  King  v.  Hoare,  13  M.  &  W. 
494,  proceeded  on  the  ground  that  the  judgment  being  for  the  same 
cause  of  action,  that  cause  of  action  was  gone.  Transivit  in  rem 
judicatam^  which  was  a  bar,  partly  on  positive  decision,  and  partly 
on  the  ground  of  public  policy,  that  there  should  be  an  end  of  liti- 
gation, and  there  should  not  be  a  vexatious  succession  of  suits  for  the 
same  cause  of  action.  The  basis  of  the  judgment  was  that  an  action 
against  one  on  a  joint  contract  was  an  action  on  the  same  cause  of 
action  as  that  in  an  action  against  another  of  the  joint  contractors,  or 
in  an  action  against  all  the  joint  contractors  on  the  same  contract. 

From  very  early  times  it  was  the  law  that  a  contract  was  an  entire 
thing,  and  that,  therefore,  all  who  were  parties  to  the  contract  must,  if 
alive,  join  as  plaintiffs,  and  must  be  joined  as  defendants.  If  this  was 
not  done  there  must  be  a  plea  in  abatement  (Com.  Dig.  Abatement,  E. 
12,  F.  8).  That  very  learned  lawyer  cites  7  Hen.  4,  6,  and  20  Hen. 
6,  11,  as  authorities  for  this,  and  probably  earlier  authorities  might  be 
found,  but  I  think  it  unnecessary  to  search  for  them,  as  it  has  never,  as 
far  as  I  know,  been  doubted  that  the  defendant  might  plead  the  non- 
joinder of  his  joint  contractors  in  abatement,  and  in  that  way  compel 
the  plaintiff  to  join  as  defendants  all  who  were  parties  to  the  joint  con- 
tract and  were  still  alive.  But  there  was  long  a  controversy  as  to 
whether  the  plea  in  abatement  was  the  only  wa^'  in  which  the  objection 
could  be  raised.  If  on  the  evidence  it  was  proved  that  the  contract 
was  joint,  it  was  thought  that  there  was  a  variance  between  the  proof  of 
a  joint  contract  with  the  parties  to  the  action,  and  some  one  not  a  party 
to  the  action  and  still  alive,  and  the  allegation  in  the  declaration  which, 
it  was  thought,  must  be  taken  to  be  allegation  of  a  contract  between  the 


SECT.   lU.]  KENDALL   V.    HAMILTON.  491 

parties  to  the  action  and  no  others,  and  consequently  that  there  should 
be  a  nonsuit  or  verdict  for  the  defendant  on  the  ground  of  variance. 
This,  it  has  now  been  settled,  is  the  law  in  cases  where  the  objection  is 
the  non-joinder  of  a  plaintiff;  and  consequently  the  non-joinder  of  a  co- 
contractor  as  plaintiff  was  never  in  modern  times  pleaded  in  abatement. 
And  it  was  long  thought  b}'  man}'  that  the  same  course  was  open  to  a 
defendant.  Such  was  the  decision  of  Lord  Holt  and  the  Court  of  King's 
Bench  in  Boson  v.  Sandford,  2  Salk.  440.  My  Lords,  I  need  hardly 
point  out  that  if  this  had  been  still  followed  as  law,  it  would  have  made 
it  clear  that  tlie  cause  of  action  against  the  one  was  the  same  as  that 
against  all ;  or  rather  that  there  was  no  cause  of  action  at  all  against 
the  one  alone,  and  never  could  be  judgment  against  one  alone  ;  and  so 
the  point  could  never  have  risen.  But  it  was  established  b}-  a  series  of 
cases,  which  ma}'  be  found  collected  in  Serjeant  Williams'  note  to  Cabell 
V.  Vaughan,  1  Wms.  Saund.  290  a,  that  though  all  the  joint  contractors 
must  be  joined  as  co-defendants,  the  only  way  of  taking  advantage  of 
the  non-joinder  was  by  a  plea  in  abatement.  The  first  case,  in  which 
I  find  this  decided  was  Rice  v.  Shute,  5  Burr.  2611.  The  last  in  which  I 
find  it  controverted,  though  unsuccessfully,  was  E^vans  v.  Lewis,  1  Wms. 
Saund.  291  (c?),  in  1794.  But  though  the  mode  of  enforcing  the  joinder 
of  all  was  thus  cut  down,  it  still  remained  the  law  that  all  ought  to  be 
joined.  And  consequently  I  cannot  doubt  that  the  judges  in  King  v. 
Hoare,  13  M.  &  W.  494,  were  accurate  in  holding  that  the  two  actions 
were  upon  the  same  cause  of  action.  I  cannot  agree  in  what  seems  to  be 
the  opinion  of  the  noble  and  learned  Lord  on  my  left  (Lord  Penzance) 
that  the  Judicature  Act  has  taken  away  the  right  of  the  joint  contractor 
to  have  the  other  joint  contractors  joined  as  defendants,  or  made  it  a  mere 
matter  of  discretion  in  the  court  to  permit  it.  With  great  deference  I 
think  that  the  right  remains,  though  the  mode  of  enforcing  it  is  changed. 

I  do  not  think  the  defence  a  meritorious  one  ;  but  I  think  in  the 
present  case  there  is  no  great  hardship.  The  plaintiffs  had  a  right 
of  recourse  against  Hamilton,  for  which  they  never  bargained  ;  but 
they  did  nothing  inequitable  in  taking  advantage  of  that  which  the 
law  gave  them.  They  have  destroyed  that  remedy  by  taking  a  judg- 
ment against  persons  who  turn  out  to  be  insolvent.  I  do  not  see  that 
Hamilton  does  anything  inequitable  in  taking  advantage  of  the  defence 
which  the  law  gives  him.  The  plaintiffs  got  a  right  by  operation  of 
law,  without  any  merits  of  their  own,  by  what,  as  far  as  regards  them, 
was  pure  good  luck.  They  have  lost  it  by  what  was  no  fault  of  theirs., 
but  was,  as  far  as  they  were  concerned,  pure  bad  luck.  If  the  plain- 
tiffs were  willing  to  take  advantage  of  their  good  luck  against  the  de- 
fendant, it  seems  no  hardship  that  he  should  take  advantage  of  their 
bad  luck  against  them. 

But  in  such  a  case  as  King  v.  Hoare,  13  M.  &  W.  494,  where  the 
plaintiff  had  contracted  with  the  provisional  committee  of  a  company, 
and  consequently  was  very  uncertam  how  many  were  joint  contractors, 
It  did  operate  harshly.     He  dared  not  join  many  in  the  first  action,  for, 


492  KENDALL   V.    HARULTON.  [CHAP.    IIL 

as  the  law  then  stood,  if  he  failed  as  to  any  one  he  failed  as  to  all ;  and 
it  does  seem  hard  that  a  judgment  obtained  under  such  circumstances, 
against  one  should  be,  without  satisfaction,  a  bar  as  to  all  the  others. 
This  hardship  is  ver}'  much  removed  b^-  the  provisions  of  the  existing 
law,  by  which  the  plaintiff  recovers  judgment  against  those  whom  he 
proves  to  be  his  debtors,  though  he  has  joined  others  as  defendants  ;  he 
has  only  to  pay  the  costs  of  those  improperly'  joined.  But  I  think  that 
the  hardness  of  the  law,  even  if  it  exist,  is  a  reason  for  altering  it,  not 
for  refusing  to  act  upon  it ;  and  I  think  no  doubt  has  ever  been  expressed; 
unless  perhaps  in  ^x  parte  "Waterfall,  4  De  G.  &  Sm.  199,  that  King 
V.  Hoare,  13  M.  &  W,  494,  does  trul}'  state  the  law  as  it  existed  before 
the  Judicature  Acts,  and  it  was  not  doubted  in  the  courts  below,  or  I 
think  seriousl}'  questioned  at  the  bar,  that  it  did  so. 

But  since  the  Judicature  Act,  1873,  s.  24,  law  and  equity  are  to  be 
concurrently  administered.  And,  therefore,  if  before  the  passing  of  those 
acts  the  plaintiffs  could  have  sued  in  equity  on  these  facts,  or  if  they 
could  have  successfully  applied  for  an  injunction  to  jorevent  the  defend- 
ant from  pleading  this  defence,  the}'  may  raise  the  same  point  in  this 
suit  in  the  Common  Pleas  Division.  But  the  Judicature  Acts  do  not 
create  any  equit}'  applicable  to  this  case  which  did  not  exist  before. 
The}-  only  enable  the  court  to  administer  the  equities  already  existing 
without  the  delay  and  expense  forraerl}'  required. 

On  the  first  argument  at  jour  Lordships'  Bar,  Mr.  Rigb}',  in  a  very 
excellent  argument,  convinced  me  that  in  cases  of  joint  contracts  there 
was  no  difference  between  law  and  equity,  except  in  the  single  case  of 
the  death  of  one  of  the  parties  to  a  joint  contract,  where  the  contract 
was  such  that  the  maxim  Inter  mercatores  jus  accrescendi  locum  tion 
habet  applied  ;  but  I  was  diffident  of  my  opinion  on  a  question  of  such 
pure,  and  I  might  say,  technical  equit}' ;  and  was  therefore  \evy  willing 
that  the  case  should  be  re-argued. 

I  have  now  heard  the  opinion  of  the  noble  and  learned  Lords  who 
are  conversant  with  the  proceedings  in  the  Courts  of  Equity,  and  have 
no  diffidence  in  saying  that  I  am  of  the  same  opinion.^ 

1  In  Hammond  v.  Schofield  [1891],  1  Q.  B.  453,  it  was  held  that  where  judgment 
had  been  signed  by  consent  against  the  defendant,  it  could  not  be  set  aside,  even  with 
his  assent,  in  order  that  the  writ  might  be  amended  by  joining  another  defendant 
who  had  been  discovered  by  the  plaintiff  to  have  contracted  jointly  with  the  defend- 
ant. 


SECT,    in.]  COWLEY   V.    PATCH.  493 


CHARLES    COWLEY  v.  EPHRAIM  B.  PATCH,   Executor. 

Supreme  Judicial  Court  of  Massachusetts,  January  24  — 
March  3,  1876. 

[Reported  in  120  Massachusetts,  137.] 

Contract  against  the  executor  of  John  W.  Graves.  The  declara- 
tion contained  two  counts,  the  first  of  which  was  for  mone}'  had  and 
received  to  the  plaintiff's  use  by  the  said  Graves,  The  second  count 
■was  for  professional  services  and  disbursements.  The  answer  alleged, 
among  other  th  i  n  gs^tbat  if  the  testate  was  ever  indebted  to  the  plain- 
tiff, as  alleged,  he  was  lointly  indebted  with  one  Henr^'  H.  Fuller,  now 
living,  and  that  the  plaintiff  had  elected  to  prosecute  his  guits,  for 
the  indebtedness  and  identical  subject-matter  in  each  count  contained, 
against  Fuller  to  final  judgments,  which  judgments  had  been  against 
the  plaintiff,  and  in  favor  of  Fuller.  The  case  was  submitted  to  the 
Superior  Court  upon  an  agreed  statement  of  facts  in  substance  as 
follows :  — 

Each  count  declares  on  a  distinct  and  separate  demand.  The  in- 
debtedness in  the  second  count,  if  any  (which  the  defendant  does  not 
admit),  was  originally  the  joint  indebtedness  of  the  defendant's  testate, 
John  W.  Graves,  and  Henry  H.  Fuller.  A  suit  was  formerl}'  brought 
b}'  the  plaintiff  for  this  identical  demand  against  Graves  and  Fuller, 
in  the  lifetime  of  Graves.  Upon  the  death  of  Graves  during  the  pen- 
dency of  the  suit  in  court,  the  plaintiff  discontinued  against  Graves, 
and  prosecuted  his  suit  to  final  judgment  against  Fuller  alone  as  the 
survivor  of  the  joint  debtors.  On  trial  b}'  juiy,  verdict  and  judgment 
were  in  favor  of  Fuller,  the  defendant,  who  obtained  judgment  for 
costs,  which  have  been  paid  on  execution. 

A  suit  for  the  identical  demand  sought  to  be  recovered  in  the  first 
count  was  formalh'  brought  b}-  the  plaintiff  against  John  W.  Graves 
in  his  lifetime.  After  suit  brought  and  after  the  death  of  Graves,  the 
plaintiff  by  order  of  court,  on  motion,  summoned  Heniy  H.  Fuller  into 
court  as  a  joint  debtor,  contractor,  and  defendant,  with  Graves,  alleg- 
ing that  he  was  such  in  his  motion  to  summon  him  in.  Fuller  was  thus 
joined  as  a  joint  debtor  and  defendant  with  Graves.  Graves  dying 
pending  the  suit  in  court,  the  plaintiff  discontinued  as  to  Graves  and 
prosecuted  his  suit  to  trial,  verdict,  and  judgment  against  Fuller  alone 
as  the  surviving  joint  debtor.  The  ground  of  procedure  against  Fuller, 
through  trial  and  up  to  final  judgment,  was  that  he  was  a  joint  con- 
tractor and  debtor  with  Graves,  and  the  trial  was  conducted  on  that 
ground.  Verdict  and  judgment  were  in  favor  of  the  defendant,  Fuller, 
who  obtained  a  judgment  for  costs  against  the  plaintiff,  which  has  been 
paid  on  execution. 

Upon  these  facts  Putnam,  J.,  ruled    that  the  action   could  not  be 


494  COWLEY   V.    PATCH.  [CHAP.    III. 

maintained,    and  ordered  judgment   for   the  defendant.     The  plaintiff 
appealed. 

C.  Cowley,  pro  se. 

G.  Stevens^  for  the  defendant. 

Gray,  C.  J.  In__orderto_^iajntaJn__ar^^ 
whether  the  action  is  brought  j^ainst  one  or  against  both  c,{  thp  joi^it. 
contractors,  it  isnecessary  to  pr<^vp  t.lip  UabiUty  of  both  ;  ^orifone 
only  IS  or  evei-was  liable,  there  is  not  a  joint,  but  only  a  several' 
liability,  and  a  variance  from  the  cause  of  action  declared  on.  For 
example,  if  one  joint  contractor  is  sued  alone,  and  does  not  plead  in 
abatement  the  non-joinder  of  the  other,  and  judgment  is  rendered  against 
the  one  sued,  it  merges  the  cause  of  action  against  him,  and  (unless 
otherwise  provided  bj'  statute)  as  the  two  are  no  longer  jointly  liable, 
prevents  a  subsequent  recovery  against  the  other  joint  contractor. 
Ward  V.  Johnson,  13  Mass.  148.  King  v.  Hoare,  13  M.  &  W.  494. 
Mason  v.  Eldred,  6  Wall.  231.  So  if,  in  such  an  action,  the  judgment 
is  for  the  defendant,  upon  the  ground  that  there  is  no  joint  liabilit}', 
it  is  a  bar  to  a  subsequent  action  against  the  other  contractor  upon  the 
joint  contract.     Phillips  v.  Ward,  2  H.  «&  C.  717. 

The  same  rule  must  be  applied  to  this  case.  It  is  true  that,  by 
reason  of  the  death  of  one  joint  contractor,  and  the  provision  of  the 
Gen.  Sts.  c.  97,  §  28,  enabling  an  action  to  be  maintained  against  his 
administrator  as  if  the  contract  had  been  originally  joint  and  several, 
the  plaintiff  might  maintain  one  action  against  the  survivor,  and 
another  against  the  administrator  of  the  deceased.  Curtis  v.  Mans- 
field, 11  Gush.  152.  New  Haven  &  Northampton  Co,  v.  Hayden,  119 
Mass.  361.  But  the  severance  is  merely  for  purposes  of  remedy,  and 
the  plaintiff  must  still,  in  either  action,  prove  that  the  original  liability 
was  joint,  and  that,  so  far  as  concerns  that  question,  both  the  survivor 
and  the  administrator  of  the  deceased  are  liable. 

This  action  against  the  executor  of  Graves  cannot  be  maintained 
upon  the  ground  that  Graves  and  Fuller  were  originally  jointly  liable, 
because  such  liability  is  disproved  by  the  judgments  in  favor  of  Fuller 
in  the  former  actions,  one  at  least  of  which  is  shown  by  the  statement 
of  facts  to  have  been  prosecuted  against  Graves  and  Fuller  in  the  lite- 
time  of  both,  and  both  of  which  were  prosecuted  against  Fuller,  after 
the  death  of  Graves,  solelj-  upon  the  ground  of  a  joint  liabilit}-. 

It  cannot  be  maintained  upon  the  ground  that  Graves  was  originally 
the  sole  debtor,  because  as  to  one  count  it  is  admitted  that  the  original 
liabilit}',  if  any,  was  joint;  and,  as  to  the  other  count,  the  plaintiff  in 
the  former  action  treated  the  liability  as  joint,  and  there  are  no  facts 
tending  to  show  that  it  was  several. 

Judgment  for  the  defendant. 


SECT,   m.]  HALE   V,  SPAULDING.  495 

WILLIAM  HALE  v.    LEONARD  V.    SPAULDING. 

Supreme  Judicial  Court  of  Massachusetts,  November  3,    1887- 

January  4,   1888. 

[Reported  in  145  Massachusetts,  482.] 

Contract,  upon  an  instrument  under  seal,  dated  May  23,  1885,  by 
the  terms  of  which  the  defendants,  six  in  number,  agreed  to  pay  to  the 
plaintiff,  on  demand,  six  sevenths  of  any  loss  to  which  he  might  be  sub- 
jected as  the  indorser  of  a  certain  note  for  a  corporation. 

Aaron  H.  Saltmarsh  alone  defended.  He  filed  an  answer  alleging 
that  the  plaintiff,  since  the  execution  of  the  contract  declared  on,  had 
executed  and  delivered  the  following  paper,  under  seal,  to  one  of  the 
joint  obligors  under  the  contract : 

"  Received  of  L.  V.  Spaulding  $1060.84,  in  full  satisfaction  for  his 
liability  on  the  document"  signed,  &c.,  and  dated  Ma}'  23,  1885. 

At  the  trial  in  the  Superior  Court,  before  Hammond,  J.,  it  appeared 
that  on  September  20,  1886,  the  defendants,  except  Saltmarsh,  settled 
with  the  plaintiff  for  their  proportionate  part  of  the  amount  alleged  to 
be  due  under  the  agreement  declared  on,  and  the  plaintiff  executed  the 
paper  under  seal,  annexed  to  the  answer,  and  delivered  it  to  the 
defendant  Spaulding.  The  plaintiff  offered  to  prove  facts  showing  that, 
in  giving  said  sealed  paper  annexed  to  the  answer,  there  was  no  inten- 
tion of  releasing  the  defendant  Saltmarsh.  The  judge  ruled  that  said 
offer  was  not  material,  and  that  said  sealed  paper  released  the  defendant 
Saltmarsh,  and  ordered  a  verdict  for  the  defendant.  The  plaintiff 
alleged  exceptions. 

W.  H.  Moody,  for  the  plaintiff. 

H.  N".  Merrill^  for  Saltmarsh. 

C.  Allen,  J.  The  words  "in  full  satisfaction  for  his  liability" 
import  a  release  and  discharge  to  Spaulding,  and,  the  instrument 
being  under  seal,  it  amounts  to  a  technical  release.  The  plaintiff  does 
not  controvert  the  general  rule,  that  a  release  to  one  joint  obligor 
releases  all.  Wiggin  v.  Tudor,  23  Pick.  434,  444 ;  Goodnow  v.  Smith, 
18  Pick.  414;  Pond  v.  Williams,  1  Gray,  630,  536.  But  this  result  is 
avoided  when  the  instrument  is  so  drawn  as  to  show  a  contrary  inten- 
tion. 1  Lindl.  Part.  433;  2  Chit.  Con.  (11th  Am.  ed.)  1154  &  seq.; 
Ex  parte  Good,  5  Ch.  D.  46,  55.  The  difficulty  with  the  plaintiff's 
case  is,  that  there  is  nothing  in  the  instrument  before  us  to  show  such 
contrary  intention.  Usualh'  a  reservation  of  rights  against  other 
parties  is  inserted  for  that  purpose  ;  or  the  instrument  is  put  in  the 
form  of  a  covenant  not  to  sue.  See  Ken  worthy  v.  Saw^-er,  125  Mass. 
28;  Willis  v.  De  Castro,  4  C.  B.  (n.  s.)  216;  North  v.' Wakefield,  13 
Q.  B.  536,  541.  Parol  evidence  to  show  the  actual  intention  is  incom- 
petent. Tuckerman  v.  Newhall,  17  Mass.  580,  585.  The  instrument 
given  in  this  case  was  a  mere  receipt  under  seal  of  money  from  one  of 


496  PRICE   V.   BARKER   AND   CLARK.  [CHAP.   Ill, 

several  joint  obligors,  in  full  satisfaction  for  his  liability  on  the  docu- 
ment signed  by  himself  and  others.  There  is  nothing  to  get  hold  of  to 
show  an  intent  to  reserve  rights  against  the  others.  He  might  already 
have  discharged  each  of  them  by  a  similar  release. 

Exceptions  overruled} 


I       PRICE,  Public  Officer,  &c.,  v.  BARKER  AND  CLARK, 
I  Executors  of  GEORGE  HOPPS. 

In  the  Queen's  Bench,  February  22,  1855. 

[Reported  in  4  Ellis  4r  Blackburn,  760.] 

Coleridge,  J.,  now  delivered  the  judgment  of  the  Court. 

This  was  an  action  by  the  public  officer  of  a  banking  Company 
against  the  executors  of  George  Hopps.  The  declaration  was  on  a 
bond  conditioned  for  the  security  to  the  bank  of  a  banking  account  of 
one  William  Brown.  The  plea  set  out  the  bond,  which  was  the  joint 
and  several  writing  obligatory  of  the  said  George  Hopps  and  William 
Brown,  and  then  set  out  a  general  release,  made  after  the  accruing  of 
the  causes  of  action,  and  averred  that  the  release  was  made  in  the  life- 
time of  the  said  George  Hopps  without  the  privit}',  knowledge,  author- 
ity, or  consent  of  the  said  George  Hopps.  The  replication  set  out  the 
release,  which,  after  general  words  of  release,  contained  the  following 
proviso.  "Provided  always,  that  notliing  herein  contained  shall 
extend,  or  be  deemed  or  construed  to  extend^  to  prevent  the  said  Bank- 
ing Company,  their  successors  or  assigns,  or  the  partners  for  the  time 
being  constituting  the  said  Company,"  "  from  suing  or  prosecuting 
any  person  or  persons,  other  than  the  said  William  Brown,  his  execu- 
tors, administrators,  or  assigns,  who  is,  are,  shall  or  may  be  liable  or 
accountable  to  pay  or  make  good  to  the  said  Banking  Company  all  or 
any  part  of  any  debt  or  debts,  sum  or  sums  of  money,  now  due  from 
the  said  William  Brown  to  the  said  Companv,  either  as  drawer,  in- 
dorser,  or  acceptor  of  any  bill  or  bills  of  exchange  or  promissory  note 
or  notes,  or  as  being  jointly'  or  severally  bound  with  the  said  William 
Brown  in  an}-  bond  or  bonds,  obligation  or  obligations,  or  other  instru- 
ment whatsoever,  or  otherwise  howsoever,  as  if  these  presents  had  not 
been  executed  :  it  being  understood  and  agreed  that,  as  regards  any 
such  suits  or  prosecutions,  these  presents  shall  not  operate  or  be 
pleaded  in  bar,  or  as  a  release." 

1  Re  E.  W.  A.,  [1901]  2  K.  R.  642;  Allin  v.  Shadburne,  1  Dana,  68;  Lunt  v. 
vStevens,  24  Me.  534  ;  Rowley  v.  Stoddard,  7  Johns.  207  ;  Newcorab  !'.  Kaynor,  21  Wend. 
108;  Goldbeck  r.  Bank,  147  Pa.  207;  Maslin  v.  Hiett,  37  W.  Va.  15,  ace.  Compare 
Walters  v.  Smith,  2  B.  &  Ad.  889  ;  Field  v.  Robins,  8  A.  &  E.  90 ;  Bender  v.  Been,  78 
la.  283  ;  Young  v.  Currier,  63  N.  H.  419  ;  Crafts  v.  Sweeney,  18  R.  I.  730. 


SECT,    in.]  PRICE   V.   BARKER   AND   CLARK.  497 

To  this  replication  the  plaintiff  demurred:  and  the  demurrer  was 
Tgued  before  us  in  the  course  of  the  Term. 

On  the  argument  two  questions  arose : 

1st,  Whether  the  general  words  of  the  release  were  restrained  by  the 
proviso,  so  that,  in  order  to  give  effect  to  the  whole  instrument,  we 
aiust  construe  it  as  a  covenant  not  to  sue,   instead  of  a  release. 

And,  2dly,  Assuming  the  deed  to  operate  merely  as  a  covenant  not 
to  sue,  whether  the  reservation  of  rights  against  other  parties  than  the 
principal  debtor  contained  in  the  proviso  would  prevent  the  surety 
from  being  discharged  by  a  binding  covenant  to  give  time  to,  or  not 
to  sue,  the  principal  debtor. 

To  entitle  the  plaintiff  to  our  judgment,  it  must  appear  that  the  deed 
operated  only  as  a  covenant  not  to  sue,  and  that  the  rights  of  the 
plaintiff  as  against  the  surety  were  preserved  by  the  particular  reserva- 
tion in  question,  notwithstanding  such  covenant  not  to  sue. 

With  regard  to  the  first  question,  two  modes  of  construction  are  for 
consideration.  One,  that,  according  to  the  earlier  authorities,  the 
primary  intention  of  releasing  the  debt  is  to  be  carried  out,  and  the 
subsequent  provision  for  reserving  remedies  against  co-obligors  and 
co-contractors  should  be  rejected  as  inconsistent  with  the  intention  to 
release  und  destroy  the  debt  evinced  bv  the  general  words  of  the 
release,  and  as  something  which  the  law  will  not  allow,  as  being  repug- 
nant to  such  release  and  extinguishment  of  the  debt.  The  other,  that,  ac- 
cording to  the  modern  authorities,  we  are  to  mould  and  limit  the  general 
words  of  the  release  by  construing  it  to  be  a  covenant  not  to  sue,  and 
thereby  allow  the  parties  to  carr}-  out  the  whole  of  their  intentions  b\'  pre- 
serving the  rights  against  parties  jointly  liable.  We  quite  agree  with  the 
doctrine  laid  down  b\-  Lord  Denman,  in  Nicholson  v.  Revill,  4  A.  «&;  E. 
675,  as  explained  b}'  Baron  Parke  in  Kearsley  v.  Cole,  16  M.  &  W.  136, 
that,  if  the  deed  is  taken  to  operate  as  a  release,  the  right  against  a 
party  jointly  liable  cannot  be  preserved :  and  we  think  that  we  are 
bound  b}'  modern  authorities  (see  SoUj^  v.  Forbes,  2  Br.  &  B.  38  ; 
Thompson  v.  Lack,  3  Com.  B.  540  ;  and  Payler  v.  Homersham,  4  M. 
&  S.  423)  to  carry  out  the  whole  intention  of  the  parties  as  far  as 
possible,  b}-  holding  the  present  to  be  a  covenant  not  to  sue,  and  not 
a  release.  It  is  impossible  to  suppose  for  a  moment  that  the  parties 
to  this  deed  could  have  contemplated  the  extinguishment  of  their 
rights  as  against  parties  jointly  liable.  It  was  argued,  indeed,  that 
the  particular  words  of  the  proviso  in  the  present  case  prevented  this 
construction  b}'  appearing  to  recognize  that  Brown  was  not  to  be  sued, 
and  that,  in  an  action  against  him,  the  deed  was  to  operate  as  a  release 
and  might  be  pleaded  at  bar.  The  words,  however,  that  the  proviso 
was  not  to  extend  to  prevent  the  bank  from  suing  or  prosecuting  any 
person  or  persons  other  than  the  said  defendant  or  his  representatives, 
which  were  said  to  show  that  Brown  was  not  to  be  sued,  are  quite 
as  applicable  to  a  covenant  not  to  sue  as  to  a  release  :  and  the  later 
general  words  in  the  conclusion  of  the  deed,  "  that,  as  regards  any 

VOL.  I.  —  32 


498  PRICE   V.   BARKER   AND   CLARK.  [CHAP.   III. 

such  suits  or  prosecutions"  (against  parties  jointly  liable),  "these 
presents  shall  not  operate  or  be  pleaded  in  bar,"  are,  we  think,  like 
the  words  of  actual  release,  too  general  to  prevent  us  by  inference 
from  giving  effect  to  the  plainly  expressed  intention  that  the  parlies 
jointly  liable  should  not  be  discharged  bj'  an  extinguishment  of  the 
debt.  If,  therefore,  the  testator,  whom  the  defendants  represent,  had 
been  in  the  situation  of  co-obligor  merely,  we  should  think  that  he  was 
not  discharged  by  the  deed  in  question. 

It  remains,  however,  in  the  second  place,  to  consider  what  effect  the 
deed  had  upon  his  liabilities  in  reference  to  his  relation  as  surety  for 
Brown,  the  principal  debtor.  It  was  thrown  out,  indeed,  in  argument, 
that  we  were  bound  to  consider  him  as  a  principal  debtor  and  not  as  a 
surety  upon  this  bond,  the  obligator}'  part  of  the  bond  being  joint  and 
several  without  any  reference  to  either  being  suret}'  or  principal.  But, 
for  the  purpose  of  seeing  the  relation  of  the  parties,  we  must  look  at 
the  condition  of  the  bond,  as  set  out  upon  the  pleadings,  which  plainly 
discloses  that  the  defendant  was  a  surety  for  the  liabilities  of  Brown. 

If  the  question,  whether  a  covenant  not  to  sue,  qualified  bj'  such  a 
proviso  as  that  in  the  present  case,  and  entered  into  by  the  cred- 
itor without  the  consent  of  the  suret}',  discharges  the  surety',  were 
a  new  one  unaffected  by  authority,  we  should  pause  before  deciding 
that  such  a  case  does  not  fall  within  the  general  rule  of  the  cred- 
itor discharging  a  surety  by  entering  into  a  binding  agreement  to  give 
time  to  his  principal  debtor ;  and  we  should  have  thought  the  for- 
cible observations  of  Lord  Truro  in  the  recent  case  of  Owen  v. 
Homan,  3  Macn.  &  G.  378,  entitled  to  much  consideration.  We  find, 
however,  that  the  Court  of  Exchequer  in  a  solemn  and  well-consid- 
ered judgment,  in  the  case  of  Kearsley  v.  Cole,  16  M.  &  W.  128,  136, 
after  referring  to  all  the  authorities,  states  that  the  point  must  "  be 
considered  as  settled " :  and  the}'  rest  their  judgment  upon  this, 
although  it  was  not  necessary  to  decide  it,  as  the  surety  in  that  case 
had  consented  to  the  deed :  which  consent  they  treat  indeed  as  an 
additional  reason;  but  they  expressly  state  that  it  was  not  necessary-. 
They  state  that  they  "  do  not  mean  to  intimate  an}'  doubt  as  to  the 
effect  of  a  reserve  of  remedies  without  such  consent;"  and  they  add 
that  "  the  cases  are  numerous  that  it  prevents  the  discharge  of  a 
surety,  which  would  otherwise  be  the  result  of  a  composition  with  or 
giving  time  to  a  debtor  by  a  binding  instrument ;  "  and  they  then 
explain  how  it  is  that,  in  their  judgment,  the  reserve  of  remedies  has 
that  effect.  After  this  judgment,  and  after  the  strong  expression  of 
opinion  b}'  the  present  Lord  Chancellor  in  his  judgment  in  the  House 
of  Lords  in  the  case  of  Owen  v.  Homan,  4  H.  L.  C.  1037,  where  he  dis- 
sents from  the  remarks  made  by  Lord  Truro  in  the  Court  below,  and 
states  that,  but  for  those  remarks,  he  should  have  thought  that  the 
principle  contended  for  by  the  plaintiffs  was  "  a  matter  beyond  doubt," 
we  think  that  we  ought  to  consider  the  law  on  this  subject  as  settled, 
at  least  until  it  is  questioned  in  a  Court  of  error. 


SECT.   III.]  MARTIN    V.   CRUMP.  499 

It  seems  to  be  the  result  of  the  authorities  that  a  covenant  not  to 
sue,  quaUfied  by  a  reserve  of  the  remedies  against  sureties,  is  to  allow 
the  suretj'  to  retain  all  his  remedies  over  against  tlie  principal  debtor ; 
and  that  the  covenant  not  to  sue  is  to  operate  only  so  far  as  the 
rights  of  the  surety  may  not  be  affected. 

Probabl}-  man}'  deeds  of  this  nature  are  framed  continuall}-  on  the 
supposition  that  the  law  has  been  supposed  to  be  settled,  in  the  man- 
ner stated  in  the  Exchequer,  since  tlie  time  of  Lord  Eldon :  and  we 
think  that,  sitting  as  a  Court  of  coordinate  jurisdiction  with  the 
Exchequer,  we  ought  not  to  disturb  the  law  stated  b}'  them  in  a 
solemn  judgment  to  be  clearly  settled. 

Our  judgment,  therefore,  upon  the  demurrer  in  the  present  case  is  in 
favor  of  the  plaintiff. 

Judgment  for  the  plaintiff.^ 


MARTIN  V.   CRUMP. 

In  the  King's  Bench,   Easter  Term,  1698. 

[Reported  in  2  Salkeld,  444.] 

Two  joint  merchants  make  B  their  factor ;  one  dies,  leaving  an 
executor ;  this  executor  and  the  survivor  cannot  join,  for  the  remedy 
survives,  but  not  the  duty ;  and  therefore  on  recovery  he  must  be 
accountable  to  the  executor  for  that.^ 

1  See  also  Willis  v.  De  Castro,  4  C.  B.  n.  s.  216 ;  Bateson  v.  Gosling,  L.  E.  7  C.  P. 
9 ;  Cragoe  v.  Jones,  L.  R.  8  Ex.  81  ;  Line  v.  Nelson,  38  N.  J.  L.  358. 

2  Survivorship  in  the  case  of  a  joint  right  is  illustrated  in  Anderson  v.  Martindale, 
1  East,  497  ;  Trammell  v.  Harrell,  4  Ark.  602  ;  McLeod  v.  Scott,  38  Ark.  72,  76  ;  Su- 
preme Lodge  V.  Portiugall,  167  111.  291  ;  Vandenhauvel  v.  Storrs,  3  Conn.  203  ;  Indiana, 
&c.  Ry.  Co.  V.  Adamson,  114  Ind.  282  ;  Needham  v.  Wright,  140  Ind.  190,  198;  Mc- 
Calla  V.  Rigg,  3  A.  K.  Marsh.  259  ;  Peters  v.  Davis,  7  Mass.  257  ;  Hedderly  i;.  Downs, 
31  Minn.  183. 

Illustrations  of  the  doctrine  of  survivorship  in  the  case  of  a  joint  liability  mav  be 
found  in  Richardson  v.  Horton,  6  Beav.  185;  Murphy's  Adm.  v.  Branch  Bank,  5  Ala. 
421  ;  Bundy  v.  Williams,  1  Root,  543  ;  Bulkly  v.  Wright,  2  Root,  10 ;  Ballance  v. 
Samuel,  4  ill.  380 ;  Moore  v.  Rogers,  19  111.  347  ;  Eggleston  v.  Buck,  31  111.  254 ;  Cum- 
miugs  V.  People,  50  111.  132;  Stevens  v.  Catlin,  152  111.  56;  Clark  v.  Parish,  1  Bibb, 
547;  New  Haven,  &c.  Co.  v.  Hayden,  119  Mass.  361  ;  Tucker  v.  Utley,  168  Mass.  415; 
Fuller  V.  Wilbur,  170  Mass.  506;  Murray  v.  Mumford,  6  Cow.  441  ;  Bradley  v.  Bur- 
well,  3  Deriio,  61  ,  Coinins  v.  Pottle,  22  Hun,  287  ;  Wood  v.  Fisk,  63  N.  Y.  245;  Doug- 
lass ».  Ferris,  138  N.  Y.  192,  207;  Burgoyne  v.  Ohio  Life  Ins.  Co.,  5  Ohio  St.  586; 
Kennedy  v  Carpenter,  2  Whart.  344,  361. 

But  the  estate  of  a  deceased  joint  contractor  has  been  made  liable  in  many 
states  by  statute.  Reed  v.  Summers,  79  Ala.  522,  524  ;  Stevens  v.  Catlin,  152  111.  56  ; 
Clark  V.  Parish,  1  Bibb.  547  ;  Foster  v.  Hooper,  2  Mass.  572  ;  Martin  v.  Hunt,  1  Allen, 
418;  New  Haven,  &c.  Co.  i-.  Hayden,  119  Mass.  361  ;  Cobb  v.  Fogg,  166  Mass.  466, 
476  ;  Suydara  i;.  Barber,  18  N.  Y.  468  ;  Burgoyne  v.  Ohio  Life  Ins.  Co.,  5  Ohio  St.  586; 
Weil  V.  Guerin,  42  Ohio  St.  299,  302  ;  Eckert  v.  Mj-ers,  45  Ohio  St.  525 ;  Taylor  v. 
Taylor,  5  Humph.  110 ;  Chadwick  v.  Hopkins,  4  Wye.  379. 


V 


500  DAVIS   V.   VAN   BUREN.  [CHAP.    m. 


CHARLES   H.  DAVIS   et  al,   Appellants,   v.   MYNDERT   VAN 
BUREN,   Executor,   etc.,    Respondent. 

New  York  Court  of  Appeals,  February  18-22,   1878. 
{Reported  in  72  New  York,  587.] 

Per  Curiam.  One  Bixbee  was  arrested  at  the  suit  of  the  plaintiffs, 
in  an  action  commenced  against  him  by  them  in  the  New  York  Common 
Pleas,  and  to  procure  his  discharge  from  such  arrest,  he,  Benjamin  G. 
Bloss  and  Jordan  Mott,  defendant's  testator,  executed  an  undertaking 
as  required  by  section  187  of  the  old  Code.  There  was  default  in  the 
undertaking,  and  the  plaintiffs  then  caused  a  summons  to  be  issued  in 
this  action  against  Bloss  and  Mott,  which  was  served  on  Bloss  ;  before 
it  could  be  served  on  Mott,  he  died.  Bloss  was  afterwards  discharged 
in  bankruptcy*,  and  the  defendant,  as  executor  of  Mott,  was  sub- 
stituted, and  the  action  continued  against  him. 

The  undertaking  is  a  joint  obligation.  It  is  so  in  terms,  and  we  can- 
not interpolate  into  it  words  of  severalt}'.  It  could  have  been  made 
joint  and  several,  but  it  was  not.  Bloss  and  Mott  were  sureties. 
Thej'  did  not  assume  a  principal  obligation ;  they  undertook  for 
another ;  they  had  no  interest  except  as  sureties,  and  were  entitled  to 
all  the  right  of  sureties.  This  case  cannot,  therefore,  be  distinguished 
from  Wood  v.  Fisk  (63  N.  Y.,  245),  and  the  defendant,  as  the  repre- 
sentative of  Mott,  cannot  be  held.  It  is  a  rule  of  the  common  law, 
too  long  settled  to  be  disturbed,  that  if  a  joint  obligor  dying  be  a 
surety,  not  liable  for  the  debt  irrespective  of  the  joint  obligation,  his 
estate  is  absolutely  discharged,  both  at  law  and  in  equity,  the  sur- 
vivor only  being  liable.  Towers  v.  Moore,  2  Vern.  98  ;  Simpson  v. 
Vaughan,  2  Atk.  31  ;  Bradley  v.  Burwell,  3  Denio,  61  ;  Richter  r. 
Pappenhausen,  42  N.  Y.  393;  Pickersgill  v.  Tohms,  15  Wall.  140; 
Getty  V.  Binsse,  49  N.  Y.  388  ;  Risley  v.  Brown,  67  id.  160. 

However  unjust  this  rule  may  be  in  its  general  operation  we  have  no 
right  to  abrogate  it.  We  must  enforce  it  whenever  it  is  applicable,  and 
leave  to  tiie  law-making  power  any  needed  change. 

The  judgment  must  be  affirmed. 

All  concur. 

Judgment  affirmed.^ 

K  1  Compare  Richardson  v.  Horton,  6  Beav.  185. 

\  V  "  The  sole  ground  upon  which  the  appellants  deny  the  right  of  the  respondents  to 

\    share  in  tlie  assigned  estate  is  that,  by  the  death  of  the  assignor,  he  being  a  mere 

\    surety,  the  liability  upon  his  guaranty  was  extinguished,  and  they  ceased  to  have  any 

\   claim  upon  his  estate  ;  and  the  appellants  rely  for  their  contention  upon  the  principle 

\  laid  down  in  United  States  v.  Price,  9  How.  [U.  S.]  90;  Getty  v.  Binsse,  49  N.  Y.  385; 

\  "Wood  V.  Fisk,  63  id.  245;  Risley  v.  Brown,  67  id.  160.  and  kindred  cases. 

"  It  Ls  undoubtedly  the  rule  that  in  case  of  a  joint  obligation  of  sureties,  if  one  of  the 
1  I  obligors  die,  his  representatives  are,  at  law,  discharged,  and  the  survivor  alone  can  be 
1   \  sued ;  but  that  where  the  joint  obligors  were  all  principal  debtors,  or  received  some 


SECT,    ni.]    OSBORN   V.    MARTHA'S   VINEYARD   RAILROAD  CO.   501 


SAMUEL  OSBORN,  Jr.,  and  others  v.  MARTHA'S  VINEYARD 
RAILROAD  COMPANY. 

Supreme  Judicial  Court  of  Massachusetts,  October  27,  1885  — 
January  11,  1886. 

[Reported  in  140  Massachusetts,-54:9.] 

Gardner,  J.  This  action  was  originally  commenced  bj'  Samuel 
Osborn,  Jr.,  one  of  the  plaintiffs.  After  the  trial  of  the  case  Osborn 
moved  to  amend  his  writ  b}-  adding,  as  joint  plaintiffs  with  him,  Shubael 
L.  Norton,  and  Nathaniel  M.  Jerncgan,  which  motion  was  allowed. 
The  action  then  proceeded  upon  the  allegation  in  their  declaration,  that 
the  defendant  owed  the  three  plaintiffs  $600,  according  to  the  account 
annexed,  which  was  for  twent}'  tons  of  iron  rails  at  $30  per  ton,  giving 
credit  for  $400,  paid  to  Norton  and  Jernegan. 

The  first  question  which  arises  is  whether  the  contract  made  b}'  the 
plaintiffs  with  the  defendant  was  joint  or  several.  The  report  finds 
that  the  three  plaintiffs  purchased  twenty  tons  of  iron  rails  in  their  own 

benefit  from  the  joint  obligation,  courts  of  equity  have  taken  jurisdiction  in  the  caae 
of  the  death  of  one  of  the  obligors,  and  enforced  the  obligation  against  his  representa- 
tives. The  ground  upon  which  those  courts  have  proceeded  is  that  in  conscience  the 
estate  of  the  deceased  obligor  ought  to  respond  to  the  obligation ;  and  they  have 
given  relief  in  all  cases  where,  in  consequence  of  a  primary  liability  on  the  part  of 
the  deceased  obligor,  or  of  a  benefit  received  by  him  from  the  joint  obligation,  it  was 
morally  and  equitably  just  that  his  estate  should  be  made  liable,  and  unconscionable 
that  it  should  be  discharged.  But  it  has  been  a  rule  in  courts  of  equity  that  where 
the  deceased  joint  obligor  was  a  mere  surety,  receiving  no  benefit  from  the  obligation, 
and  having  no  interest  therein,  except  as  surety,  his  estate,  in  case  of  his  death,  is 
discharged  from  liability.  This  rule,  in  such  cases,  rests  upon  the  ground  that  the 
surety  is  not  bound  in  morals  or  good  conscience  to  pay,  except  in  accordance  with 
the  strict  letter  of  his  obligation,  and  that  being  discharged  therefrom  at  law,  there  is 
no  room  for  the  interference  of  equity  upon  principles  of  natural  justice  by  them 
administered.  The  reasoning  upon  which  the  exemption  of  the  deceased  surety's 
estate  from  liability  is  founded,  though  sanctioned  by  numerous  cases,  is  not  very  con- 
vincing, and  has  not  always  been  viewed  by  judges  and  jurists  with  favor. 

"  It  is  difficult  to  perceive  why  the  estate  of  a  surety  who  was  a  joint  obligor,  upon 
■whose  credit  and  responsibility,  mainly,  the  obligee  loaned  his  money,  should  be  dis- 
charged by  the  death  of  the  surety.  It  would  seem  that  in  good  conscience  and 
sound  morals,  and  upon  principles  of  natural  justice,  it  should  respond,  and  bear 
the  loss,  if  any,  rather  than  the  obligee  who  trusted  the  surety.  But  it  has  been 
quite  uniformly  held  that  the  mere  joint  obligation  of  the  deceased  surety  is  not 
BuflScient  to  create  an  equity  against  his  estate. 

"  In  all  the  cases  which  have  come  under  my  observation  where  it  has  been  held 
that  death  discharged  the  obligation  of  a  joint  surety,  it  appeared  that  the  joint 
obligor  was  a  mere  surety,  who  received  no  benefit  whatever  from  the  joint  oblig:i- 
tion.  The  cases  to  be  found  in  the  books  are  generally  those  of  joint  accommodation 
indorsers  of  notes,  joint  sureties  upon  official  bonds,  or  upon  undertakings  given  on 
appeal,  or  mere  sureties  upon  other  instruments  of  a  similar  nature."  Richardson  v 
Draper,  87  N.  Y.  337,  344. 

See  also  Douglass  v.  Ferris,  138  N.  Y.  192,  207. 


^^^ 


502   osBORN  V.  Martha's  vineyard  railroad  co.  [chap.  ni. 

names,  giving  a  promissory  note,  signed  by  the  thiee,  to  the  vendor 
therefor.  In  this  purchase,  there  was  no  reference  to  any  separate 
interest  of  the  purchasers  in  the  iron  rails,  and  they  became  joint 
owners  thereof.  They  then  sold  the  rails  to  the  defendant,  maliing 
no  reservation  of  any  single  interest  in  anj*  one  of  the  vendors.  The 
defendant  promised  jointly,  not  separatel}',  to  pay  the  three  plaintiffs 
the  price  therefor.  This  contract  was  joint,  the  several  payees  having 
thei'ein  a  joint  interest,  so  that  no  one  could  sue  for  his  proportion. 
When  they  jointly  undertook  to  sell  the  rails  in  one  mass  to  the  defend- 
ant, they  held  themselves  out  to  be  joint  owners,  voluntarily  assuming 
that  relation  to  the  propert3'  sold  to  the  defendant.  The  contract  be- 
came a  joint  contract,  the  plaintiffs  being  joint  creditors,  not  several, 
of  the  defendant.  2  Chit.  Cont.  (11th  Am.  ed.)  1340  The  three  owners 
represented,  in  effect,  that  they  had  a  common  interest  in  the  propert}', 
without  any  difference  in  their  respective  interests  and  possessions,  and 
that  payment  was  to  be  made  of  the  entire  sum. 

The  two  plaintiffs  Norton  and  Jernegan,  in  behalf  of  themselves  and 
of  Osborn,  settled  with  the  defendant  for  the  amount  due,  in  full  pay- 
ment and  satisfaction  of  their  demand,  receiving  as  payment  in  part 
money  and  in  part  shares  of  stock  in  the  defendant  corporation.  The 
plaintiff'  Osborn  insists  that  he  is  not  bound  by  this  settlement ;  and 
that,  in  the  name  of  the  three  vendors,  he  can  recover  in  money  that 
portion  of  the  original  indebtedness  to  which,  as  between  himself  and 
his  associates,  he  was  entitled. 

The  interest  of  the  three  plaintiffs  in  their  joint  claim  against  the 
defendant  was  such  that  each  had  an  interest  in  the  entire  claim.  One 
of  them  had  not  only  an  interest  in  the  third  which  might  be  his  share, 
but  also  in  the  two  thirds  belonging  to  the  others.  It  has  been  settled 
in  this  action  that  one  cannot  maintain  an  action  for  his  share  ;  the 
three  must  join  in  the  suit,  because  each  one  has  a  joint  interest  in  the 
entire  amount  due  them,  and  in  every  part  thereof.  Osborn  is  debarred 
from  bringing  suit  for  his  third  part,  because  Norton  and  Jernegan  own 
that  third  as  fully  as  does  Osborn.  Each  having  such  an  interest  in 
the  debt  due,  one  being  unable  to  sue  for  the  whole  or  his  share  thereof, 
it  follows  that  each  one,  being  interested  in  the  entire  claim,  can  settle 
it  with  the  defendant.  Each  of  the  three,  by  the  manner  of  their  deal- 
ing with  the  defendant  and  with  the  property,  has  effectually  authorized 
his  partners  in  the  contract  to  dispose  of  his  interest  by  payment, 
settlement,  or  accord  and  satisfaction,  and  to  release  the  defendant 
from  its  obligation  under  the  contract.     1  Pars.  Cont.  25. 

In  this  case  there  was  no  formal  release  by  writing  under  seal.  The 
plaintiffs  Norton  and  Jernegan,  upon  the  settlement,  "gave  the  defend- 
ant a  receipted  bill  of  the  demand  for  the  price  of  the  rails  and  interest." 
The  delivery  of  the  shares  of  stock  by  the  defendant  to  the  plaintiffs, 
and  the  payment  of  the  money  were  accepted  in  satisfaction  and  pa}'- 
ment  of  the  debt.  It  was  an  accord  and  satisfaction  unconditional, 
actually  executed  and  accepted.     This  operates  to  release  the  defend- 


SECT.    III.]    OSBORN   V.  MARTHA's   VINEYAED   RAILROAD   CO.    503 

ant  from  further  liability  upon  the  contract.  No  particular  form  of 
words  is  necessar}'  to  constitute  a  valid  release.  "  Any  words  which 
show  an  evident  intention  to  renounce  the  claim  upon,  or  to  discharge, 
the  debtor  are  sufficient."  2  Chit.  Cont.  (11th  Am.  ed.)  1146.  The 
plaintiff  Osborn  in  his  argument  has  not  urged  that  this  settlement 
was  not  in  effect  a  release.  If  this  transaction  between  the  parties,  if 
assented  to  by  all  who  participated  in  it,  was  such  as  to  release  the 
defendant  from  all  liability  to  Norton  and  Jernegan,  of  which  there  is 
no  contention,  then  it  follows  that  the  release  of  two  was  the  release 
of  all.  When  there  is  such  a  unit}'  of  interest  as  to  require  a  joinder 
of  all  the  parties  interested  in  a  personal  action,  the  release  of  one  is 
as  effectual  as  the  release  of  all.  Austin  v.  Hall,  13  Johns.  286  ;  Decker 
V.  Livingston,  15  Johns.  479. 

In  this  case,  fraud  is  not  set  up,  nor  is  there  any  suggestion  of  fraud 
in  the  transaction.  The  settlement  was  in  effect  an  accord  and  satis- 
faction, which  operates  as  a  release.  Wallace  v.  Kelsall,  7  M.  &  W. 
264,  272. 

The  settlement  made  b3'  Norton  and  Jernegan  with  the  defendant 
released  the  defendant  from  further  liability  upon  its  contract  with 
the  plaintiffs,  and  the  action  cannot  be  maintained.  By  the  terms  of 
the  report  there  must  be 

Judgment  for  the  defendant} 

G.  A.  Torrey^  for  the  defendant. 

C.  G.  M.  Dunham^  for  the  plaintiffs. 

1  Wallace  v.  Kelsall,  7  M.  &  W.  264  ;  Husband  v.  Davis,  10  C.  B.  G45,  ace. 
Similarly  a  release  by  one  joint  creditor  discharges  the  right  of  all.  Rawstorne  v. 
Gandell,  15  M.  &  W.  304  ;  Myrick  v.  Dame,  9  Cush.  248;  Napier  v.  McLeod,  9  Wend. 
120.  As  to  the  rule  in  equity,  see  Piercy  v.  Fynney,  L.  R.  12  Eq.  69  ;  Steeds  v.  Steeds, 
22  Q.  B.  D.  537 ;  Powell  v.  Brodhurst,  [1901]  2  Ch.  160. 

Joint  obligations  have  been  much  discussed  in  the  civil  law.  See  the  French  Code 
Civil,  Arts.  1197-1216;  the  German  Burgerliches  Gesetzbuch,  §§420-432;  Wind- 
Bcbeid,  Pandektenrecht,  §  292  seq. 


504  BOURKMIRE   V.   DAKNELL.  [CHAP.   IV. 

CHAPTER  IV. 

THE   STATUTE  OF  FRAUDS. 


ACT  OF   29   CHARLES   II.    Chapter  3    (1676). 

IV.  And  be  it  further  enacted  by  the  authorit}-  aforesaid,  That  from 
and  after  the  said  four  and  twentieth  day  of  J'une  no  action  shall  be 
brought  whereby  to  charge  any  executor  or  administrator  upon  any 
special  promise,  to  answer  damages  out  of  his  own  estate  ;  (2)  or 
whereby  to  charge  the  defendant  upon  any  special  promise  to  answer 
for  the  debt,  default  or  miscarriages  of  another  person  ;  (3)  or  to 
charge  any  person  upon  an}'  agreement  made  upon  consideration  of 
marriage ;  (4)  or  upon  any  contract  or  sale  of  lands,  tenements  or 
hereditaments,  or  an}-  interest  in  or  concerning  them;  (5)  or  upon 
any  agreement  that  is  not  to  be  performed  within  the  space  of  one 
year  from  the  making  thereof;  (6)  unless  the  agreement  upon  which 
such  action  shall  be  brought,  or  some  memorandum  or  note  thereof, 
shall  be  in  \Friting,  and  signed  by  the  party  to  be  charged  therewith, 
or  some  other  person  thereunto  by  him  lawfully  authorized. 

XVII.  And  be  it  further  enacted  by  the  authority  aforesaid,  That 
from  and  after  the  said  four  and  twentieth  daj'  of  June  no  contract  for 
the  sale  of  any  goods,  wares  and  merchandizes,  for  the  price  of  ten 
pounds  sterling  or  upwards,  shall  be  allowed  to  be  good,  except  the 
buyer  shall  accept  parLQf_the  goods  so  sold,  and  actually  receive  the 
same,  or  give  something  in  earnest  to  bind  the  bargain,  or  in  part  of 
payment,  or  that  some  note  or  mem,orandum.  in  writing  of  the  said 
Ifargain  be  made  and  signed  by  the  parties  to  be  charged  by  such  con- 
tract, or  their  agents  thereunto  lawfully  authorized. 


J 


SECTION   I. 
CONTRACTS  WITHIN  THE   STATUTE. 


A  —  Guarantees. 


BOURKMIRE  v.   DARNELL. 

In  the  Queen's  Bench,  Michaelmas  Term,  1704. 

>JsN!L<.»jy  [Reported  in  3  Salkeld,  15.] 

Assumpsit,  &c.,  in%hich  the  plaintiff  declared,  that  the  defendant  in 
consideration  he,   (the  plaintiff,)  at  the  instance  and  request  of  the 


SECT,   l]  booth   V.   EIGHMEE.  505 

defendant,  would  lend  and  deliver  to  one  Joseph  English  umim  spadonem 
of  him  the  said  plaintiff,  to  ride  to  Reading  in  Berkshire ;  he  (the 
defendant)  assumpsit,  and  promised  to  the  plaintiff,  that  the  said 
Joseph  should  re-deliver  the  said  gelding  safely  to  him  the  plaintiff. 
Upon  non-assumpsit  pleaded,  the  evidence  at  the  trial  was,  that  the 
said  Joseph  English  would  have  hired  the  gelding  of  the  plaintiff,  but 
could  not  prevail  with  him  till  the  defendant  came,  and  did  undertake 
for  the  re-delivery  ;  upon  which  the  counsel  for  the  defendant  insisted, 
that  the  plaintiff  ought  to  produce  a  note  in  writing  of  this  agreement, 
which  being  overruled,  there  was  a  A'erdict  for  the  plaintiff;  and  it 
was  moved  in  arrest  of  judgment,  and  per  Curiam  adjudged,  that  it 
was  void  by  the  statute  of  frauds,  because  it  was  a  collateral  under- 
taking  for  the  act  of  another,  and  in  such  case  the  statute  requires,  that 
it  must  be  in  writing.  The  difference  is,  where  the  whole  credit  is 
given  to  the  undertaker,  in  such  case  the  third  person  is  in  nature 
of  a  servant,  and  there  is  no  remedy  against  him  ;  it  is  true,  the  under- 
taking is  good,  but  it  is  not  within  the  statute,  and  therefore  not  req- 
uisite it  should  be  in  writing ;  but  where  the  undertaker  comes  in  aid 
only  to  procure  or  obtain  ci-edit  for  another,  so  that  the  remedy  ma}'  be 
against  both,  this  is  a  collateral  undertaking  for  another,  and  made  void 
by  the  statute  if  it  is  not  in  writing.  Ex  per  Curiam,  In  the  principal 
case  the  plaintiff  may  maintain  an  action  of  detinue  against  Joseph 
English,  upon  the  original  delivery  of  the  gelding ;  and  therefore  this 
promise,  made  b}-  the  defendant,  was  to  answer  for  the  act  and  default 
of  another,  for  which  reason  the  verdict  was  set  aside.^ 


EZRA   B.    BOOTH,    Respondent,  v.  JEREMIAH  EIGHMIE, 

Appellant. 

New  York  Court  of  Appeals,  February  17-March  23,  1875. 

[Reported  in  60  New  York,  238.]    ^  (7 ,  Qlyflfi, 

Miller,  J.  Jgj-  t.hp.  Sfaj^nte  of  Frauds,  any  promise  tr>  anawpr  for  tha  j\  ^^^ 
debt,  default,  or  miscarriage  of^noUtmiig^void^unless  the  same  bejn^  I  '-^^^^ 
writing  and  subscribed  by  the  fiHiyJ^-i^-^HS^^T^®^®^^*^^-  ^  R.  S,,  i'  ^^  - 
'136,  §2.  "'  '"^  Omj? 

One  Mrs.  ColUns  was  a  debtor  to  a  plaintiff,  the  debt  being  secured  ' 

by  a  deed  of  certain  real  estate  absolute  upon  its  face,  but  actually 
intended  as  a  mortgage.  Mrs.  Collins,  being  desirous  of  paying  said 
indebtedness,  and  obtaining  a  conveyance  of  the  land,  at  the  request  of 
ih&  defendant,  the  plaintiff  conveyed  the  land  to  Mrs.  Collins,  in  oon- 

1  Compare  other  reports  of  the  same  case  in  2  Lord  Ray,  1085,  6  Mod.  248,  1  Salk. 
27.  The  numerous  cases  enforcing  the  distinction  taken  iu  Bourkmire  v.  Darnell  are 
collected  in  Ames's  Cas.  Suretyship,  2-19. 


506  BOOTH   V.   EIGHMIE.  [CHAP.   IV. 

sideration  of  which  the  defendant  deposited  and  delivered,  in  pledge  to 
secure  the  indebtedness,  certain  railroad  bonds,  which  he  agreed, 
within  one  year  thereafter,  to  redeem  at  par,  by  paying  the  principal 
and  interest  which  the}'  represented. 

The  question  to  bf>dpt.f]rf|^jppd  ia  whether  the  promise  of  the  de- 
fendant was  voidL  l>Y  Uie  statute  of  frauds.  The  authorities  upon  the 
subject  are  numerous,  but  the  later  decisions  have,  to  a  great  extent, 
established  certain  general  rules  which  are  in  most  cases  applicable  and 
controlling.  The  tests  to  be  applied  under  the  statute  in  every  rase,  i3_ 
whether  the  party  sought  to  be  charo^ed  is  the  Kijnf'ipal  debtor  primarily 
liable,  or  whether  he  is  only  liable  in  case  of  the  default  of,  a  third_ 
person  ;  in  other  words,  whether  be  is  the  debtor  or  whether  his  relation 
to  thecrcditor  is  that  of  surety  to  him  fo^'^the  performance,  by  some 
other  person,  of  the  ol>ligation  of  the  latfip'-^'^  fhTTrn>i;tr.p  Brown  v. 
Weber,  38  N.  Y,  187,  There  is,  I  think,  no  sufficient  ground  for 
claiming  that  the  promise  of  the  defendant  was  given  or  accepted  as 
collateral  to  the  demand  which  the  plaintiff  held  against  Mrs.  Collins, 
or  in  default  of  her  paying  the  same.  There  was  no  such  condition 
made  in  the  agreement,  and  it  is  not  to  be  inferred  from  the  facts  pre- 
sented. It  was  not  a  promise  to  become  liable  as  surety  for  the  debt 
©f  another,  or  collateral  to  the  original  indebtedness.  That  indebted- 
ness had  been  fully  discharged  by  the  convej'ance^of  the  land  by  the 
plaintiff  to  Mrs.  Collins,  and  it  is  in  no  way  apparent,  nor  can  it  be 
properly  assumed  that  the  plaintiff  could  enforce  his  claim  against  her. 
The  test  is,  whether  the  plaintiff  could  have  maintained  an  action 
against  her  for  the  demand  which  was  paid  b}'  a  conveyance  of  the 
land  and  acceptance  of  the  bonds.  No  such  element  entered  into  the 
agreement,  either  upon  the  execution  of  the  conve3'ance  or  the  deliver}' 
of  the  bonds  ;  nor  is  it  to  be  presumed  from  the  circumstances  surround- 
ing the  case.  An  action  brought  for  such  a  purpose  would  be  without 
any  evidence  to  support  it,  and  must  inevitably  fail.  The  plaintiff  had 
entirely  relinquished  his  claim  upon  the  land,  as  well  as  against  the 
original  debtor,  and  the  defendant  entered  into  an  independent  obliga- 
tion to  secure  or  pa}'  the  debt.  The  case  was  not  that  of  a  creditor 
who  releases  a  security  without  extinguishing  the  debt,  but  was  a 
relinquishment  of  the  debt  against  the  debtor  without  having  and 
without  reserving  any  right  whatever  to  pursue  a  remedy  against  the 
debtor. 

In  my  opinion,  there  is  no  valid  ground  for  claiming  that  there  was 
no  sufficient  consideration  to  support  the  promise.  By  the  conveyance 
of  the  lands  to  Mrs.  Collins,  the  plaintiff  gave  up  a  security  on  real 
estate  which,  we  are  authorized  to  assume,  was  ample,  and  took  de- 
fendant's promise  with  the  bonds,  the  market-value  of  which  was  fifteen 
per  cent  below  par.  He  also  released  the  debtor  from  personal  liability, 
and,  without  the  benefit  of  the  defendant's  promise,  he  no  doubt  would 
have  been  subjected  to  loss  upon  the  sale  of  the  bonds.  Here  was  an 
injury  to  follow  by  reason  of  a  failure  to  fulfil  the  promise,  and  the 


SECT.    I.]  GUILD   &    CO.    V.   CONRAD.  607 

defendant  also  was  benefited  b\'  obtaining  a  lien  upon  the  lands  con- 
veyed to  Mrs.  Collins,  bj-  means  of  security  taken,  and  a  mortgage 
wbicli  she  executed  to  him,  as  well  as  by  a  right  to  develop  these  lands. 
2  Parsons  on  Con.  [5th  ed.],  7. 

The  case  of  Mallory  v.  Gillett,  21  N.  Y.  412,  is  cited  b}-  the  counsel 
on  both  sides,  and  I  do  not  discover  any  doctrine  laid  down,  or  principle 
asserted,  which  conflicts  with  the  rules  already  referred  to  as  bearing 
upon  cases  of  this  character.  In  that  case  the  plaintiff  had  possession 
of  a  canal  boat,  upon  which  he  had  a  lien  for  repairs,  and  delivered  it 
to  a  third  person,  at  the  defendant's  request,  upon  his  verbal  promise 
that  lie  would  pay  the  amount  due  for  such  repairs,  and  it  was  held, 
there  being  no  consideration  moving  to  the  defendant,  that  his  promise 
was  void  under  the  statute  of  frauds.  There  is  a  marked  distinction 
between  the  case  cited  and  the  one  at  bar.  In  the  case  cited,  the 
plaintiff  never  relinquished  or  extinguished  his  claim  against  the 
original  owner  for  the  repairs,  while  here  it  was  completely  surrendered. 
Besides,  there  was  no  valid  consideration  for  the  promise,  and  it  was 
collateral  to  the  original  debt,  which  was  still  in  force,  and  for  the 
collection  of  which  there  was  an  adequate  and  an  ample  remedy'.  It  is 
said,  in  the  prevailing  opinion  in  this  case,  that  among  the  cases  which 
are  not  held  to  be  within  the  statute,  are  those  "  where  the  original 
debt  becomes  extinguished,  and  the  creditor  has  onh'  the  new  promise 
to  relj'  upon."  The  case  at  bar  maj',  I  think,  be  considered  as  em- 
braced within  this  rule,  as  we  have  seen  that  the  plaintiff  could  only 
rely  upon  the  agreement  made  with  the  defendant  to  obtain  payment  of 
her  entire  demand. 

The  judgment  must  be  affirmed  with  costs. 

All  concur ;  except  Allen  and  Folger,  J  J.,  dissenting ;  Church, 
C.  J.,  not  sitting. 

Judgment  affirmed.^ 


GUILD   &   CO.    V.    CONRAD. 
In  the  Court  of  Appeal,  June  19,  21,  1894. 

[Reported  in  [1894]  2  Queen's  Bench,  885.] 

Lindlet,  L.  J.  This  case  is  one  of  considerable  difficulty  and  very 
near  the  line.  The  question  is,  what  is  the  nature  of  the  promise  which 
the  defendant  made  to  the  plaintiff.  It  appears  that  the  real  plaintiff, 
Mr.  Binney,  is  a  merchant  who  was  in  correspondence  with  a  Demerara 
firm  of  Conrad,  Wakefield  &  Co.,  one  of  the  partners  in  which  was  a 
son  of  the  defendant;  and  by  a  letter  of  -June,  1888,  the  defendant 
agreed  that,  if  the  plaintiff  would  give  credit  to  tlie  Demerara  firm  to 
the  extent  of  5,000^.,  the  defendant  would  iudemnifj'  the  plaintiff  to  that 

^  Numerous  cases  in  accord  are  collected  in  Ames's  Cas.  Suretyship,  30. 


508  GUILD    &    CO.    V.    CONRAD.  [CHAP.   IV. 

extent.  There  is  no  question  that  that  was  a  guarantee  in  the  proper 
sense  of  the  term  ;  that  is  to  sa}',  it  was  an  undertaking  b}-  the  defend- 
ant to  be  responsible  for  the  Demerara  firm  for  5,000/.  This  was  in 
writing ;  but  by  a  verbal  guarantee  the  amount  was  enlarged  after- 
wards, in  March,  1891,  to  6,000/,  The  plaintiff  claimed  that  enlarged 
amount  under  this  verbal  guarantee  ;  but  the  learned  judge  below  has 
decided  this  claim  in  favor  of  the  defendant,  and  no  appeal  has  been 
brought  in  respect  of  that  decision.  As  time  went  on,  the  Demerara 
firm  got  overdrawn  ;  and  at  last,  in  December,  1891,  the  plaintiff  was 
so  reluctant  to  accept  their  bills  that  he  eventually  declined  to  do  so  ; 
and  an  interview  then  took  place  between  the  plaintiff  and  defendant 
and  Wakefield,  a  member  of  the  Demerara  firm.  This  interview  took 
place  on  December  31,  1891,  when  bills  of  that  firm  for  5,950/.  were 
about  to  become  due,  but  which  the  plaintiff  would  not  accept ;  and  in 
the  following  January  a  second  interview  took  place  in  consequence  of 
some  further  bills  to  the  amount  of  5,280/.  One  of  the  difficult  points 
in  this  case  is  to  find  out  what  took  place  at  those  interviews.  The 
promises  said  to  have  been  made  were  verbal  onlj'.  Wakefield,  one  of 
the  parties  present  at  the  interviews,  is  dead.  The  testimony'  of  the 
plaintiff  and  the  defendant  upon  the  subject  differ  entirel}-.  The  plain- 
tiflTs  version  is  to  the  effect  that  tb£.  defendant  undertooktoMndemnify 
him  against  those  bills  if  he,  the  plaintiff,  would  accept  them.__Xlj.e^ 
defendant's  version  is  that  he  did  not  give  any  such  undertaking.;__an^ 
that  was  the  controversy  whicjh  was  before  the  jury.  The  jury  has 
decided  that  controversy  in  favor  of  the  plaintiff.  The}'  have  found, 
after  hearing  the  evidence,  that  the  defendant  is  wrong  ;  that  he  did  in 
fact  make  a  promise  to  find  the  funds  for  both  batches  of  bills,  and  to 
indemnify  the  plaintiff  against  them.  I  do  not  now  consider  the  ques- 
tion of  the  form  of  the  promise  —  whether  it  imposed  a  primary  or  a 
secondary  liabilit}' :  I  pass  that  by  for  the  moment.  But  the  struggle 
on  the  main  point  resulted  in  favor  of  the  plaintiff.  The  jury  were 
then  discharged,  and  it  was  arranged  that  an^-  other  questions  which 
might  arise  in  the  case  should  be  left  to  the  judge.  The  judge  then  ad- 
dressed his  mind  to  the  question  whether  the  promise  found  by  the  jury 
to  have  been  made  by  the  defendant  was  in  such  a  shape  that  the 
Statute  of  Frauds  rendered  it  nugatory  unless  it  was  in  writing,  or 
whether  it  was  such  that  the  Statute  of  Frauds  did  not  apply  to  it. 
The  question  whether  that  was  brought  before  the  jur}-  seems  a  little 
uncertain.  The  learned  judge,  having  seen  the  witnesses  and  read  the 
correspondence,  came  to  the  conclusion  that  the  promise  was  to  the 
effect  I  will  state  presently.  I  will  read  the  learned  judge's  own  words. 
At  the  end  of  his  judgment  he  says,  the  defendant's  promise  "  was  not 
a  contract  to  pay  if  the  foreign  firm  did  not  pa}',  because  there  was  no 
expectation  at  that  time  that  the  foreign  firm  would  be  able  to  pa}-. 
The  contract  was  to  find  funds  to  enable  the  plaintiff  to  meet  these 
acceptances."  Now,  whether  the  jury  meant  that  or  not  is  doubtful. 
The  question  is  one  of  fact,  and  if  it  was  not  decided  by  the  jury  then 


SECT.   I.]  GUILD   &    CO.    V.    CONKAD.  509 

it  was  left  to  the  finding  of  the  judge,  and  I  have  read  what  his  finding 
was.  Ought  we  to  differ  from  that  finding?  We  are  urged  to  saj'  that 
the  judge  was  wrong  in  his  finding  ;  that  the  evidence  did  not  come  up 
to  that ;  and  that  the  defendant's  promise  was  merely  a  contract  to  pay 
the  plaintiff  if  the  Demerara  firm  did  not  paj'.  That,  in  m}-  opinion,  is 
a  difficult  question.  The  evidence  is  loose  unquestionably  ;  but  I  can- 
not bring  m}-  mind  to  say  that  it  cannot  bear  the  construction  wliich 
the  learned  judge  put  upon  it.  The  nature  of  the  promise  is  all-impor- 
tant :  because,  if  it  was  a  promise  to  pay  if  the  Demerara  firm  did  not 
pa}',  then  it  is  void  under  the  Statue  of  Frauds  as  not  being  in  writing. 
But  if,  on  the  other  hand,  it  was  a  promise  to  put  the  plaintiff  in  funds 
in  an}-  event,  then  it  is  not  such  a  promise  as  is  within  the  Statute  of 
Frauds.  I  think  that  the  learned  judge  had  taken  the  true  view, 
though  it  is  very  near  the  line.  I  cannot  help  thinking  that  the  true 
result  of  those  interviews  was  this  —  that  the  defendant  did  promise 
the  plaintiff  that,  if  he  would  accept  those  batches  of  bills,  he,  the  de- 
fendant, would  take  care  that  they  should  be  met,  and  that  he  himself 
would  provide  funds  to  meet  them  ;  and  it  was  on  the  faith  of  that 
promise  that  the  plaintiff  accepted  those  bills.  If  this  is  the  real  con- 
tract, and  if  the  learned  judge  is  right  in  saying  that  the  contract  was 
not  a  contract  to  pay  if  the  Demerara  firm  did  not  pay,  but  was  a  con- 
tract to  pay  in  any  event,  then,  in  my  opinion,  the  authorities  show 
that  the  Statute  of  Frauds  does  not  apply.  The  authorities  are 
Thomas  v.  Cook,  8  B.  &  C.  728,  and  Wildes  v.  Dudlow,  Law  Rep. 
19  Eq.  198,  Thomas  v.  Cook  appears  to  me  to  be  undistinguishable 
from  this  case,  if  the  facts  here  are  such  as  I  take  them  to  be.  There 
a  man  named  Cook  and  a  man  named  Morris  had  been  in  partnership ; 
and  on  the  dissolution  of  the  partnership  it  was  agreed  that  Cook  should 
pay  the  partnership  debts,  and  it  was  also  agreed  that  a  bond  of  in- 
demnity, executed  by  W.  Cook,  since  deceased,  and  two  other  per- 
sons, should  be  given  to  Morris  to  save  him  harmless  from  the  payment 
of  those  debts.  It  being  necessary  that  two  sureties  should  be  found 
to  join  in  the  bond,  the  plaintiff  agreed  to  become  one  of  the  sureties 
on  a  promise  by  the  defendant  to  indemnify  him,  the  plaintiff,  from  all 
liability  by  reason  of  his  joining  in  the  bond.  The  decision  was  as  fol- 
lows. After  pointing  out  that  Morris  was  a  creditor,  Bayley,  J.,  said 
this:  "Here  the  bond  was  given  to  Morris  as  the  creditor;  but  the 
promise  in  question  was  not  made  to  him.  A  promise  to  him  would 
have  been  to  answer  for  the  default  of  the  debtor.  But  it  being  neces- 
sary for  W.  Cook,  since  deceased,  to  find  sureties,  the  defendant  ap- 
plied to  the  plaintiff  to  join  him  in  the  bond  and  undertook  to  save  him 
harmless.  A  promise  to  indemnify  does  not,  as  it  appears  to  me,  fall 
within  either  the  words  or  the  policy  of  the  Statute  of  Frauds."  Then 
Parke,  J.,  said:  "This  was  not  a  promise  to  answer  for  the  debt, 
default,  or  miscarriage  of  another  person,  but  an  original  contract  be- 
tween these  parties,  that  the  plaintiffs  should  be  indemnified  against 
the  bond.     If  the  plaintiff,  at  the  request  of  the  defendant,  had  paid 


610  NUGENT   V.   WOLFE.  [CHAP.   IV. 

money  to  a  third  person,  a  promise  to  repay  it  need  not  have  been  in 
writing,  and  tliis  case  is  in  substance  tlie  same." 

I  need  not  refer  to  other  cases  which  have  followed  that ;  but  I  must 
notice  the  argument  which  has  been  addressed  to  us  that  Thomas  v. 
Cook,  8  B.  &  C.  728,  is  bad  law.  Unquestionably  it  was  not  followed 
by  the  Court  of  Queen's  Bench  in  Green  v.  Cresswell,  10  Ad.  &  E.  453, 
and  Cripps  v.  Hartnoll,  31  L.  J.  (n.  s.)  (Q.  B.)  loO  ;  2  B.  &  S.  697  ;  but, 
notwithstanding  the  criticism  of  the  learned  judges  in  those  cases, 
Thomas  v.  Cook,  supra,  was  set  on  its  feet  again  by  the  deci- 
sion of  the  Court  of  Exchequer  Chamber  in  the  latter  case,  32  L.  J. 
(n.  s.)  (Q.  B.)  381,  4  B.  &  S.  414,  and  it  has  since  held  its  ground;  and 
after  the  decision  in  Eastwood  v.  Kenyon,  11  Ad.  &  E.  438,  it  is  im- 
possible to  hold  that  a  promise  made  by  the  defendant  to  the  plaintiflf 
to  indemnify  the  plaintiff  against  a  debt  due  from  him  to  a  third  person 
is  within  the  statute,  and  therefore  required  to  be  in  writing.  In  my 
opinion  the  decision  in  Thomas  v.  Cook,  supra,  was  right,  and 
it  is  treated  as  good  law  in  Hargreaves  v.  Parsons,  13  M.  &  W.  561, 
and  it  is  supported  in  Reader  v.  Kingham,  13  C  B.  (n.  s.)  344.  The 
modern  cases  of  Wildes  v.  Dudlow,  Law  Rep.  19  Eq.  198,  and  In  re 
Bolton,  W.  N.  (1892)  163,  8  Times  L.  R.  668,  are  equally  good  law. 
Such  being  the  case,  it  follows  that  the  main  defence  here  —  namely, 
that  the  promise  is  bad  as  not  being  in  writing  within  the  Statute  of 
Frauds  —  breaks  down. 

[The  Lord  Justice  then  dealt  with  certain  other  points  urged  on  be- 
half of  the  appellant  upon  the  facts  of  the  case,  and  held  that  those 
points  failed.     The  Lord  Justice  continued  :  — ] 

The  main  questions  are,  what  was  the  promise?  And,  secondly, 
whether  the  promise  was  such  as  is  required  by  the  Statute  of  Frauds 
to  be  writing.  The  promise  is,  in  my  opinion,  clear ;  and  the  Court 
below  has  found  that  the  promise  was  a  promise  to  indemnify',  and 
therefore  not  within  the  Statute  of  Frauds.  The  decision  is,  in  my 
opinion,  right,  and  therefore  the  appeal  must  be  dismissed.^ 


/^^ 


NUGENT  V.   WOLFE. 
Pennsylvania  Supreme  Court,  January  11,  1886. 

[Peported  in  111  Pennsylvania  State,  471.] 

Mr.  Justice  Sterrett  delivered  the  opinion  of  the  court,  February 
Ist,  1886. 

If  the  verbal  agreement,  which  plaintiflf  offered  to  prove,  is  within 
the  supplement  of  1855  to  the  Statute  of  Frauds  and  Perjuries,  there 

1  Lopes,  L.  J.,  and  Da  vet,  L.  J.,  delivered  concurring  opinions. 
Numerous  cases  in  accord  are  collected  in  Ames's  Cas^  Suretyship,  53,  54. 


SECT.   I.]  NUGENT   V.   WOLFE.  511 

was  no  error  in  rejecting  the  testimony,  nor  in  entering  judgment  of 
nonsuit.  The  supplement  declares :  "  No  action  shall  be  brought 
whereby  ...  to  charge  the  defendant  upon  any  special  promise  to 
answer  for  the  debt  or  default  of  another,  unless  the  agreement  upon 
which  such  action  shall  be  brought  or  some  memorandum  or  note 
thereof  shall  be  in  writing  and  signed  by  the  party  to  be  charged  there- 
with, or  some  other  person  b}'  him  authorized  "  :  P.  L.  308. 

Plaintiff  gave  in  evidence  the  record  of  two  judgments  in  favor  of 
the  First  National  Bank  of  Ravenna,  one  dated  January',  1876,  against 
Powers  &  Co.,  and  the  other,  March,  1877,  against  himself  as  bail  for 
stay  of  execution  on  the  first  mentioned  judgment.  He  then  offered  to 
prove,  in  substance,  that  in  February,  1876,  defendant  Wolfe  requested 
him  to  become  bail  for  sta}'  of  execution  ;  and,  in  consideration  of  his 
agreeing  to  do  so,  promised  and  undertook  to  inderanif}'  and  save  him 
"  harmless  from  any  loss  or  liability,  and  from  paying  anything  by 
reason  of  his  so  going  securit}' ; "  that,  relaying  on  said  promise  and 
undertaking  of  defendant,  he  did  become  bail  for  stay  of  execution  on 
the  judgment  against  Powers  &  Co.  This  offer  was  objected  to  on 
the  ground  that  the  agreement  was  not  in  writing  as  required  by  the 
statute,  and  the  proposed  testimon}'  was  excluded  b}'  the  court.  In 
the  same  connection  it  was  admitted  that  Powers  &  Co.  became 
insolvent,  that  plaintiff  was  compelled  to  pay  the  judgment,  then 
amounting  to  $1,499.74,  and  that  defendant,  though  often  requested, 
had  not  paid  any  portion  thereof.  The  question  thus  presented  is, 
whether  the  alleged  agreement  which  plaintiff  was  not  permitted  to 
prove  is  within  the  clause  of  the  supplement  above  quoted. 

The  clause  in  question  is  copied,  substantially,  from  the  fourth 
section  of  the  English  Statute,  29  Charles  II.  chap.  3,  which,  with 
slight  changes  in  phraseology',  has  been  generally  adopted  in  this 
country.  During  the  more  than  two  centuries  since  its  original  enact- 
ment, the  construction  of  this  section,  and  its  application  to  various 
forms  of  contract,  have  been  constantly  the  subject  of  contention  ;  and 
on  no  question,  perhaps,  has  there  been  greater  diversity  and  con- 
trariety of  judicial  decision,  in  this  as  well  as  in  the  parent  country. 
Cases  of  real  or  apparent  hardship  have  repeatedly  led  courts  to  put  a 
strained  and  unnatural  construction  on  what  appears  to  be  a  plain 
and  easily  comprehended  act,  passed  for  the  purpose  of  preventing  the 
commission  of  fraud  and  perjury.  If  time  would  permit,  a  review  of 
the  man}'  conflicting  and  irreconcilable  decisions  that,  from  time  to 
time,  have  been  rendered,  and  the  refined  distinctions  upon  which  they 
have  been  based,  would  be  interesting ;  but  the  undertaking  would  be 
too  great,  and  withal  not  specially  profitable. 

It  is  very  evident  that  the  statute  was  not  intended  to  apply  except 
in  cases  where,  in  addition  to  the  promisor  and  promisee,  there  is  also 
a  third  party  to  whose  debt  or  undertaking  the  agreement  of  the 
promisor  relates,  and  not  even  then  unless  the  liability  of  the  third 
party  continues.     In   other  words,    the  agreement,  to  be  within  the 


512  NUGENT   V.    WOLFE.  [CHAP.  IV. 

purview  of  the  statute,  must  in  a  certain  sense  be  a  collateral  and  not 
an  original  undertaking.  Independently  of  the  debt  or  liability  of  the 
third  part}',  there  must,  of  course,  be  a  good  consideration  for  the 
collateral  or  subordinate  agreement,  such  for  example  as  a  benefit  or 
advantage  to  the  promisor  or  an  injur}'  to  the  promisee.  It  is  difficult, 
if  not  impossible,  to  formulate  a  rule  by  which  to  determine  in  every 
case  whether  a  jDromise  relating  to  the  debt  or  liability  of  a  third 
person  is  or  is  not  within  the  statute  ;  but,  as  a  general  rule,  when  the 
leading  object  of  the  promise  or  agreement  is  to  become  guarantor  or 
surety  to  the  promisee,  for  a  debt  for  which  a  third  party  is  and  con- 
tinues to  be  primarily  liable,  the  agreement,  whether  made  before  or 
after,  or  at  the  time  with  the  promise  of  the  principal,  is  within  the 
statute,  and  not  binding  unless  evidenced  by  writing.  On  the  other 
hand,  when  the  leading  object  of  the  promisor  is  to  subserve  some 
interest  or  purpose  of  his  own,  notwithstanding  the  effect  is  to  pay  or 
discharge  the  debt  of  another,  his  promise  is  not  within  the  statute. 

As  was  said  by  Mr.  Justice  Strong  in  Maule  v.  Bucknell,  50  Pa.  St. 
39,  52,  "  It  is  undoubtedly  true  that  a  promise  to  answer  for  the  debt 
or  default  of  another  is  not  within  the  statute,  unless  it  be  collateral  to 
a  continued  liability  of  the  original  debtor.  If  it  be  a  substitute,  an 
agreement  by  which  the  debt  of  another  is  extinguished,  as  where  the 
creditor  gives  up  his  claim  on  his  original  debtor,  and  accepts  the  new 
promise  in  lieu  thereof,  it  need  not  be  in  writing.  And,  as  the  cases 
referred  to  show,  it  may  be  unaffected  by  the  statute,  though  the 
original  debt  remains,  if  the  promisor  has  received  a  fund  pledged,  set 
a[)art,  or  held  for  payment  of  the  debt.  But,  except  in  such  cases, 
and  others  perhaps  of  a  kindred  nature,  in  which  the  contract  shows  an 
intention  of  the  parties  that  the  new  promisor  shall  become  the  principal 
debtor,  and  the  old  debtor  become  but  secondarily  liable,  the  rule,  it  is 
believed,  may  be  safely  stated,  that  while  the  old  debt  remains  the  new 
must  be  regarded  as  not  an  original  undertaking,  and  therefore  within 
the  statute.  At  least  this  may  be  stated  as  a  principle  generall}^ 
accurate.  In  Williams'  Saund.  211,  note,  it  is  said:  The  question 
whether  each  particular  case  comes  within  the  clause  of  the  statute  or 
not,  depends  not  on  the  consideration  for  the  promise,  but  on  the  fact 
of  the  original  part}'  remaining  liable,  coupled  with  the  absence  of  any 
liability  on  the  part  of  the  defendant  or  his  property,  except  such  as 
arises  from  his  express  promise." 

If  one  says  to  another,  "  deliver  goods  to  A.  and  I  will  pay  you," 
the  verbal  promise  is  binding,  because  A.,  though  he  receives  the 
goods,  is  not  responsible  to  the  party  who  furnishes  them.  But,  if 
instead  of  saying,  "  I  will  pay  you,"  he  says,  "  Ijrill  see  you  paid,"^: 
or  "  I  will  pay  you  if  he  does  not,"  or  uses  words  equivalent  thereto, 
showing  that  the  debt  is,  in  the  first  instance,  the  debt  of  A.,  the 
undertaking  is  collateral,  and  not  valid  unless  in  writing.  In  these 
latter  cases,  the  same  consideration,  viz.  :  the  consideration  of  the 
]>romise  of  the  princii)al  is  a  good  consideration  for  the  promise  of 
Ithe  surety  or  collateral  promisor.     The  credit  is  given  as  well  upon  the 


SECT.    I.]  NUGENT    V.    WOLFE.  513 

original  consideration  of  the  principal  as  the  collateral  promise  of  the 
surety,  and  is  a  good  consideration  for  both  :  Nelson  v.  Boynton,  44 
Mass.  396,  400.  Other  applications  of  the  principles  above  stated 
might  be  suggested,  but  it  is  unnecessary  to  do  so. 

In  the  case  before  us  the  onlj-  consideration,  for  the  alleged  agree- 
ment, disclosed  b3'  plaintiff's  offer,  is  the  disadvantage  to  him,  the  risk 
he  incurred  by  becoming  bail  for  stay  of  execution  on  the  judgment 
against  Powers  &  Co.  If  the}'  failed  to  pa}'  their  debt,  then  in  judg- 
ment, at  the  expiration  of  the  stay,  he  thereupon  became  fixed  for  the 
amount  thereof.  In  consideration  of  the  risk  or  contingent  liability 
thus  assumed  by  plaintiff  at  defendant's  request,  the  latter  promised 
and  agreed  to  pay  the  judgment  or  see  that  it  was  paid  by  Powers  &. 
Co.,  and  thus  save  plaintiff  from  the  necessity  of  paying  the  same.  In 
other  words,  defendants  specially  promised,  for  a  good  and  valid  con- 
sideration, to  answer  for  the  default  of  Power  &  Co.,  in  not  paying  the 
judgment  at  expiration  of  the  stay.  Such  is  the  nature  and  character 
of  the  agreement  on  which  plaintiff  claimed  to  recover,  and  it  appears 
to  come  within  the  letter  as  well  as  the  spirit  of  the  clause  under  con- 
sideration. If  it  is  not  an  agreement  to  answer  for  the  debt  or  default 
of  Powers  &  Co.,  it  would  be  difficult  to  say  what  it  is.  Their  liability 
to  the  bank  still  remained.  The  only  consideration  moving  between 
the  promisor  and  promisee,  as  claimed  by  the  latter,  is  the  risk  he 
incurred  in  becoming  bail  for  Powers  &  Co.  There  is  no  testimony, 
nor  was  any  offered,  to  show  that  defendant  had  any  personal  interest 
in  the  judgment  on  which  bail  was  entered,  or  that  be  held  property  or 
funds  that  should  have  been  applied  to  the  payment  thereof  So  far 
as  appears,  it  was  the  proper  debt  of  Powers  &  Co.,  and  the  substance 
of  defendant's  agreement  is  that  he  would  see  that  they  paid  it ;  and, 
if  they  failed  to  do  so,  he  would  pay  it  for  them.  It  "was  literally  a 
promise  to  answer  for  the  default  of  Powers  &  Co.  Plaintiff's  liability 
as  bail  for  stay  was  merely  collateral  to  the  debt  in  judgment,  and  had 
in  contemplation  nothing  but  the  payment  thereof  to  the  bank. 

Without  pursuing  the  subject  further,  we  are  satisfied  the  alleged 
promise  of  defendant  is  within  the  statute,  and  cannot  be  enforced, 
because  it  is  not  in  writing.  Our  own  cases  are  in  accord  with  this 
view  :  AUshouse  v.  Ramsay,  6  "Whart.  331  ;  Shoemaker  v.  King,  40  Pa. 
St.  107;  Miller  v.  Long,  45  id.  350;  Maule  v.  Bucknell,  supra; 
Townsend  v.  Long,  77  Pa.  St.  143. 

•  The  object  of  the  statute  is  protection  against  "  fraudulent  practices 
commonly  endeavored  to  be  upheld  by  perjury,"  and  it  should  be  en- 
forced according  to  its  true  intent  and  meaning,  notwithstanding  cases 
of  great  hardship  may  result  therefrom.  There  never  was  a  time  in  the 
history  of  our  jurisprudence  when  the  necessity  for  such  a  statute  was 
greater  than  now,  when  persons  in  interest,  as  well  as  parties  to  the 
record,  are  generally  competent  witnesses. 

Judgment  affirmed.^ 

^  Mississippi,  Missouri,  Ohio,  Ppnusylvania,  and  Tennessee  hold  that  a  promise  to 
indemnify  is  within  the  Statute  of  Frauds.     See  Ames's  Cas.  Suretyship,  54. 


514  EBSSETER   V.   WATERMAN.  [CHAP.    IV. 

O.  A.   RESSETER  v.   WATERMAN. 

Illinois  Supreme  Court,  June  19,  1894. 

[Reported  in  151  Illinois,  169.] 

Appeal  from  the  Appellate  Court  for  the  Second  District ;  —  heard 
in  that  court  on  appeal  from  the  Circuit  Court  of  Lee  County ;  the 
Hon.  John  D.  Crabtrke,  Judge,  presiding. 

This  was  an  action  of  assumpsit,  in  the  Circuit  Court  of  Lee  County, 
brought  by  appellant  against  appellee,  to  recover  damages  alleged  to 
accrue  to  appellant,  by  reason  of  the  failure  of  appellee  to  perform  his 
promise  to  obtain  a  chattel  mortgage  upon  the  personal  property  of  one 
Ole  Severson,  to  secure  the  payment  of  certain  indebtedness  of  John 
and  said  Ole  Severson,  to  appellee,  and  for  which  appellant  was  surety. 

The  declaration  alleged,  in  substance,  that  on  April  12,  1889,  Water- 
man promised  Resseter  that  if  he  (Resseter)  would  sign  a  promissory 
note  for  $250,  dated  February  15,  1889,  payable  to  the  order  of  Water- 
man one  year  after  date,  as  surety  for  the  said  Seversons,  he  (Water- 
man) would  forthwith  obtain  a  chattel  mortgage  upon  all  the  personal 
property  of  said  Ole  Severson,  to  secure  the  payment  of  said  note,  and 
to  secure  the  payment  of  a  previous  note  for  $250,  dated  November  15, 
1888,  given  by  the  said  Seversons  to  Waterman,  and  also  signed  by 
plaintiff  as  surety.  It  is  also  alleged  that  said  Ole  Severson  had,  during 
the  period  covered  by  the  agreement,  sufficient  unincumbered  personal 
property  to  secure  the  payment  of  both  said  notes,  and  that  he  was 
then  and  afterwards  ready  and  willing  to  give  a  chattel  mortgage  suffi- 
cient to  indemnify  the  plaintiff  as  surety,  and  for  that  purpose,  of  which 
the  defendant  had  notice.  That  the  defendant  promised  to  indemnif\', 
and  save  harmless  the  plaintiff  as  surety",  and  plaintiff,  confiding  in  the 
said  promises,  executed  as  surety  and  delivered  to  defendant  the  said 
note  of  February  15,  1889  ;  that  said  notes  afterwards,  and  before 
the  maturit}"^  thereof,  were  negotiated  by  the  defendant ;  that  both  said 
Seversons  are  insolvent,  and  plaintiff  solvent  and  legally  bound  to  pay- 
said  notes  ;  that  the  defendant  did  not  and  would  not  take  a  chattel 
mortgage  from  said  Ole  Severson,  and  did  not  and  would  not  indemnify 
plaintiff,  as  promised,  and  that  plaintiff,  relying  upon  such  promise, 
did  not  himself  procure  a  chattel  mortgage,  etc.  It  is  further  alleged, 
that  the  holder  of  said  notes  (Ella  Waterman)  had,  May  1,  1890,  ob- 
tained judgment  thereon  for  $750,  which  was  a  lien  upon  the  plaintiff's 
propert}',  and  that  he  will  be  forced  and  obliged  to  pay  the  same,  etc. 

The  defendant  pleaded  the  general  issue  of  non-assumpsit,  the  plea 
of  non-dammficatus,  and  also  set  up  the  statute  of  frauds. 

Trial  was  had  by  a  jury,  who  returned  a  verdict  in  favor  of  the  plain- 
tiff for  $583,  and  judgment  was  entered  for  the  amount.  On  appeal  to 
the  Appellate  Court,  the  judgment  was  reversed,  without  remandment 


SECT,    I.J  EESSETER   V.   TTATERMAN.  515 

of  the  cause,  and  that  court,  having  granted  a  certificate  of  importance, 
the  plaintiff  below  appeals. 

Messrs.  Dixon  cfc  Bethea,  for  the  appellant. 

Messrs.  O^JSrien  &  O'Brien,  for  the  appellee. 

Mr.  Justice  Shope  delivered  the  opinion  of  the  Court : 

In  this  case  there  is  no  longer  any  controversy  about  the  facts.  They 
are,  by  both  the  Circuit  and  Appellate  Courts,  found  to  be  substantial!}' 
as  contended  for  by  the  plaintiff.  But  the  Appellate  Court,  conceding 
the  case  to  be  with  the  plaintiff  upon  the  facts,  held,  that  the  agree- 
ment was  one  to  answer  for  the  debt,  default,  or  miscarriage  of  another, 
and  not  being  in  writing,  was  within  the  statute  of  frauds,  and,  there- 
fore, void. 

The  principal  question  presented  for  our  consideration  is,  whether  or 
not  the  agreement  in  question  is  obnoxious  to  the  provision  of  the 
statute  of  frauds,  "  That  no  action  shall  be  brought,  .  .  .  whereby  to 
charge  the  defendants  upon  any  special  promise  to  answer  for  the  debt, 
default,  or  miscarriage  of  another  person,"  unless  the  promise  be  in 
writing,  and  signed  by  the  party  to  be  charged,  etc.  Sec.  1,  c.  59, 
R.  S.  A  consideration  of  this  question  opens  the  field  of  discussion 
and  classification  of  the  various  cases,  illustrating  the  application  of  the 
rule  of  liability  under  this  clause  of  the  statute,  and  the  nice  and  well- 
considered  distinctions  which  have  been  drawn  and  followed;  but  the 
necessity  therefor  does  not  exist,  and  we  forbear  entering  thereon. 
See  Leonard  v.  Vredenburgh,  8  Johns.  29  ;  Farley  v.  Cleveland, 
4  Cow.  432  ;  Mallory  v.  Gillett,  21  N.  Y.  412;  Anderson  v.  Spence,  75 
Ind.  315  ;  Nelson  v.  Boynton,  3  Met.  396. 

It  may  be  said  to  be  the  settled  rule,  that  where  the  agreement  is 
original  and  independent,  it  is  not  within  the  statute  ;  if  collateral,  it  is. 
Eddy  v.  Roberts,  17  111.  505;  Geary  v.  O'Neil,  73  id.  53;  Hartley  v. 
Varner,  88  id.  561.  And  the  agreement  may  be  regarded  as  original, 
and  not  within  the  statute,  although  it  directly  involves  the  interests 
of  or  concerns  a  third  party,  or  ma}'  relate  to  an  act,  or  the  perform- 
ance thereof,  by  one  not  a  party  to  the  contract.  Supra,  and  cases 
cited. 

It  is,  therefore,  necessary  to  ascertain  whether  or  not  the  agreement 
in  question  was  an  original  and  independent  one  ;  a  question  which  has 
been  found  by  the  courts,  in  a  vast  number  of  cases,  to  be  one  not  of 
eas}'  determination,  but  happily,  in  this  case,  one  of  no  serious 
diflSculty. 

It  is  contended,  that  the  promise  of  Waterman,  made  in  considera- 
tion of  appellant  executing  as  surety  the  S250  note,  dated  February  15, 
1889,  to  obtain  a  chattel  mortgage  on  all  of  Ole  Severson's  personalty 
to  secure  the  payment  of  that  note,  and  also  another  one  for  like 
amount,  previously  given  by  the  same  party,  with  appellant  as  suret}-, 
was  a  promise  to  answer  for  the  debt,  default,  or  miscarriage  of  another. 
That  is,  that  there  was  an  implied  obligation  upon  the  part  of  Ole 
Severson  to  indemnify  and  hold  harmless  his  surety,  and   that   the 


516  RESSETER   V.   WATERMAN.  [CHAP.   IV. 

promise  of  appellee  was  purely  collateral  thereto.  This  position,  we 
think,  is  not  tenable. 

In  order  that  the  promise  can  be  held  to  be  within  the  statute,  it  is 
essential  that  there  be  a  binding  and  subsisting  obligation  or  liability 
to  the  promisee,  to  which  the  promise  is  collateral.  In  other  words, 
"  that  the  party  for  whom  the  promise  has  been  made  must  be  liable  to 
the  party  to  whom  it  is  made."  3  Pars,  on  Contr.,  *21  note  p. ;  Har- 
greaves  v.  Parsons,  13  M.  &  W.  561,  50  Exch.  Rep.  ;  Eastwood  v. 
Kenyon,  11  A.  &  E.  438;  Westfall  v.  Parsons,  16  Barb.  645;  Preble 
V.  Baldwin,  6  Cush.  549  ;  Pratt  v.  Humphrey,  22  Conn.  317  ;  Alger 
V.  Scoville,  1  Gray,  391 ;  Baker  v.  Bucklin,  2  Denio,  45  ;  Perkins  v. 
Littlefield,  5  Allen,  370  ;  Thighe  v.  Morrison,  116  N.  Y.  263,  and  cases 
cited. 

In  Hargreaves  v.  Parsons,  supra,  it  was  said  by  Parke,  B. :  *'The 
statute  applies  only  to  promises  made  to  the  persons  to  whom  another 
is  already  or  is  to  become  answerable.  It  must  be  a  promise  to  be 
answerable  for  a  debt  of  or  a  default  in  some  duty  by  that  other  person 
towards  the  promisee."  In  Perkins  v.  Littlefield,  supra,  Bigelow,  J., 
said :  "  It  is  the  well-settled  doctrine,  that  the  provision  in  the  statute 
is  applicable  onl}'  to  promises  made  to  persons  to  whom  another  is 
answerable." 

Not  onh'  must  this  be  so,  but  it  is  quite  as  well  settled  that  the  lia- 
bilitj'  of  the  person  for  whom  the  promise  is  made,  to  the  promisee, 
must  be  one  which  is  capable  of  enforcement.  And  the  doctrine  is 
stated  to  be  (Throop  Verb.  Ag.,  sec.  127),  "  that  the  principle  requires 
that  the  liabilit}*  to  which  that  of  the  promisor  is  supposed  to  be  collat- 
eral should  be  one  which  can  be  enforced  b}'  proceedings  at  law  or  in 
equity  ;  and,  therefore,  unless  it  appears  that  some  person,  other  than 
the  promisor,  has  incurred  an  actual  liability  with  respect  to  the  sub- 
ject-matter of  the  promise,  the  agreement  is  not  within  the  statute, 
although  the  third  person  may  be  under  an  imperfect  or  merely  moral 
obligation  to  respond."  Downej'  v.  Hinchman,  25  Ind.  453  ;  Read  v. 
Nash,  1  Wilson,  305;  Smith  v.  Mayo,  1  Allen,  160;  Thighe  v.  Morri- 
son, supra. 

For,  if  the  third  party  be  not  liable  to  answer,  it  could  not  be  said 
that  the  undertaking  of  the  promisor  was  one  to  ''answer"  for  the  foi-- 
mer's  "debt  or  default,"  and,  therefore,  within  the  statute.  There 
being  no  liability  of  the  third  party  to  the  promisee,  the  promisor 
would  have  nothing  to  answer  for,  and  his  promise,  therefore,  would 
necessarily  be  an  original  and  independent  undertaking,  and  not  a  col- 
lateral one. 

No  express  agreement,  that  Severson  should  save  harmless  his 
suret}',  is  shown  or  pretended.  And  while  he  might  properly  be  re- 
garded as  under  an  implied  obligation  to  indemnify  his  surety,  he  was 
not  bound  to  do  so.  Neither  at  law  or  in  equity  was  such  implied  obli- 
gation susceptible  of  being  enforced ;  no  bill  would  lie  to  compel  per- 
formance, nor  action  for  damages  for  its  non-performance.    Upon  this 


SECT.   I.]  KESSETEE    V.    WATERMAN.  517 

implied  obligation  the  suret}-,  after  discharging  the  indebtedness, 
■would  have  his  action  over  against  his  principal.  It  is  manifest,  and 
requires  no  citation  of  authorit}'  to  show,  that  the  only  obligation  upon 
the  part  of  Severson  was  that  arising  by  operation  of  law,  to  reimburse 
and  make  good  to  his  surety  the  amount  expended  in  payment  of  his 
debt.  It  is  a  familiar  rule,  that  the  suret}'  can  maintain  no  action 
against  his  principal  until  he  pays  the  debt.  In  the  absence  of  express 
agreement,  his  onl}'  remedy,  then,  would  be  assumpsit  for  the  money 
actuallv  paid  and  interest.  And  even  where  the  principal  has  expressly 
promised  to  indemnify  and  save  his  surety  harmless,  the  latter  can 
maintain  no  action  on  the  promise,  unless  he  can  show  that  he  has  given 
his  own  notes  or  made  other  like  arrangements  equivalent  to  payment 
of  the  indebtedness.     3  Pars,  on  Contr.,  *186,  *187,  notes. 

As  said  by  Mr.  Parsons  (3  Law  of  Contr.,  *21,  note  p) :  "  The  ques- 
tion would  seem  to  depend  upon  the  time  when  the  promise  of  C,  the 
person  for  whom  the  guaranty  is  given,  arises.  And  this  again  will 
depend  upon  the  particular  circumstances  of  the  case.  If  these  are 
such  as  to  authorize  the  inference  that  C.  made  an  actual  promise  to 
indemnif}'  his  guarantor  at  the  time  when  the  undertaking  of  A,  was 
given  or  prior  thereto,  the  reasonable  presumption  is,  that  the  promise 
of  A.  was  intended  to  be  collateral.  If,  on  the  other  hand,  there  is 
nothing  in  the  case  from  which  an  actual  promise  b}-  C.  can  be  inferred, 
and  he  can  only  be  made  liable  on  a  promise  raised  by  operation  of 
law,  from  B.'s  having  been  compelled  to  pay  money  on  his  account,  it 
would  seem  to  be  clear  that  the  promise  of  A.  must  be  original.  For 
the  promise  of  C.  arises  upon  a  subsequent  and  independent  fact,  after 
the  promise  of  A.  has  become  a  complete  and  valid  contract."  See 
cases  there  cited:  Bushnell  v.  Beavan,  1  Bing.  (N.  C.)  320,  27  E.  C. 
L.  R.;  Jarmain  v.  Alger,  2  C.  &  P.  249,  12  E.  C.  L.  R. ;  Wood's 
Stat,  of  Frauds,  sec.  117;  Browne  Stat.  Frauds,  sec.  177;  Throop  on 
Verb.  Ag.,  sees.  114,  115;  Brandt  on  Suretyship,  sec.  60;  and  cases 
cited.  It  would,  therefore,  seem  clear,  that  according  to  the  foregoing 
well-established  principles,  there  being  no  actual  liability  on  the  part 
of  Severson,  by  express  agreement  or  otherwise,  to  indemnify  his 
surety,  which  was  capable  of  enforcement,  it  follows,  necessarily,  that 
the  promise  of  appellee  was  an  independent  undertaking,  and  not  within 
the  statute  ;  for  there  was  no  promise  on  the  part  of  Severson  to  indem- 
nify to  which  it  could  be  collateral. 

But,  treating  the  implied  obligation  of  Severson  to  indemnif}-  his 
suret}'  as  equivalent  to  a  contract  actually  made,  within  the  contempla- 
tion of  the  statute,  it  does  not  necessarily  follow  that  the  promise  of  a 
party  to  hold  the  surety  harmless  would,  in  sucli  case,  be  regarded  as 
collateral  to  the  implied  obligation  of  Severson.  The  promisor  does 
not  undertake  to  be  answerable  for  the  amount  of  the  note  which  Sever- 
son as  principal  is,  in  the  first  instance,  bound  to  pay,  nor  could  it  for 
a  moment  be  contended  that  an  action  thereon  could  be  maintained 
against  him.     His  promise  is  to  pay  what  his  promisee,  the  surety,  will 


518  BESSETER   V.   WATERMAN.  [CHAP.   IV. 

be  ultimatel}'  liable  to  pa^'.  If,  after  the  principal  has  defaulted,  the 
surety'  has  had  to  pay  the  whole  amount  or  make  up  a  deficit,  it  is  this 
amount,  together  with  other  elements  of  damage,  which  the  promisor 
promised  that  he  would  be  responsible  for,  and  not  the  sum  due  and 
owing  on  the  note  fn^m  the  principal  debtor  to  the  pa3'ee,  or  holder. 
The  measure  of  the  amount  of  recovery  in  such  case  would  not  be  the 
amount  of  the  debt,  but  the  actual  damages  sustained,  including  pa}'- 
luents  made  down  to  the  time  of  trial.     1  Suth.  on  Dam.  190. 

The  principle  under  consideration  is  illustrated  by  Mr.  Bishop  (Law 
of  Contr.,  sec.  1265),  as  follows:  "One's  promise  to  another  to  see 
him  harmless,  should  he  become  suret}'  for  a  third  person,  or  should  he 
do  anything  else,  is  a  mere  arrangement  between  promisor  and  prom- 
isee. It  is  to  pay  what  the  one  to  whom  it  is  made  may  become  liable 
for,  —  not  'another's'  debt,  but  his.  Therefore,  it  is  not  within  the 
statute,  and  is  valid  though  oral.  .  .  .  On  principle,  this  question  is 
(k'terminable  by  a  very  simple  test.  You  promise  James  that,  if  he 
puts  his  name,  as  suret}'  for  John,  on  a  bond  running  to  Richard,  you 
will  hold  him  harmless;  he  does  it;  John  makes  default.  All  agree 
that,  in  this  case,  John  is  the  *  another '  of  the  statute.  But  Richard, 
to  whom  the  debt  is  due,  cannot  sue  3'ou  ;  John  failing,  his  claim  over 
is  alone  on  James.  Aside  from  difficulties  as  to  the  form  of  the  action, 
your  liability  begins  only  when  James  has  paid  him.  There  remains 
now  for  adjustment  only  what  you  had  promised  to  James,  who  is  not 
'another,'  but  the  promisee  himself,  —  the  debt  is  j'ours  to  him,  and 
there  is  nothing  going  out  from  you  to  any  third  person.  Hence,  the 
case  is  not  within  the  statute."     See  cases  in  notes. 

Here,  it  will  be  admitted,  Severson  was  the  "  another"  for  whose  de- 
fault Waterman  must  be  held  to  have  undertaken  to  answer,  if  his 
promise  to  Resseter  is  within  the  statute.  It  is  clear,  that  Severson  at 
no  time  made  default  in  not  indemnifying  Resseter,  for  he  was  under 
no  contract  obligation  to  indemnify  him.  Not  having  promised  indem- 
nity, Severson  could  not  make  default  in  any  promise  or  undertaking 
with  Resseter,  that  he  would  give  him  a  chattel  mortgage  or  other 
indemnity.  Therefore,  Waterman's  promise  to  Resseter,  that  he  would 
take  a  chattel  mortgage  from  Severson  for  Resseter's  benefit,  was  not, 
and  could  not  be,  collateral  to  any  promise  by  Severson  to  Resseter, 
for  no  such  promise  or  undertaking  was  made  or  entered  into  between 
them. 

The  undertaking  of  Waterman  was  not  to  release  Resseter  from  an}' 
portion  of  the  debt,  or  to  do  an}'  act  or  thing  affecting  the  liability  of 
Severson  to  pay  the  note  according  to  its  terms,  but  was  an  undertak- 
ing and  promise  to  do  and  perform  something  wholl}'  outside  and  inde- 
pendent of  the  indebtedness  of  Severson,  for  the  benefit  of  Resseter, 
in  consideration  that  Resseter  would  execute  the  note. 

Resseter,  at  the  time  of  the  promise,  could  have  secured  himself  b}- 
chattel  mortgage  upon  Severson's  property,  or,  if  not,  Severson's  prop- 
erty could  have  been  resorted  to,  to  pay  the-  debt  then  due.     Water- 


SECT.    I.]  EESSETER   V.    WATERMAN.  619 

man  desired  that  the  indebtedness  be  extended  and  a  new  note  given, 
with  Resseter  as  suret}'.  Now,  instead  of  Resseter  taking  from  Sever- 
son  a  chattel  mortgage  or  other  indemnit}'  against  his  liability  as 
suretj-  for  Severson,  Waterman  undertook  and  promised  Resseter  that 
he,  Waterman,  would  procure  a  chattel  mortgage  on  Severson's  prop- 
ert}'  to  indemnifj-  Resseter.  But  for  this  promise,  Resseter  could  — 
and  no  doubt  would  —  have  subjected  Severson's  property  to  the  pay- 
ment of  the  overdue  indebtedness.  Resseter  had  a  right  to  rel^^  on  the 
promise  of  Waterman,  by  reason  of  which  he  was  prevented  from  tak- 
ing security  himself,  or  then  subjecting  Severson's  property  to  the  pay- 
ment of  the  debt.  The  conclusion  is  irresistible,  that  the  undertaking 
of  Waterman  with  Resseter  was  not  to  do  an}'  act  or  thing  that  Sever- 
son was  bound  to  do,  but  an  independent  promise,  made  upon  sufficient 
consideration,  to  do  something  which  was  not  an  undertaking  to  pay 
any  portion  of  Severson's  debt,  but  which  would  indemnif}'  Resseter  to 
the  extent  of  Severson's  property  if  the  latter  failed  to  pay  the  notes. 

This  is  not  a  case  where  the  promisor  promises  indemnity  against  a 
debt  due  to  himself,  and  that  the  suretj'  on  the  note  shall  not  be  liable 
to  pay  the  same.  Resseter  was  alread}'  liable  as  suret}'  upon  the  notes  ; 
he  then  had  the  means  of  indemnifying  himself  against  loss  out  of  Sev- 
erson's propert}'.  The  extension  of  the  debt  was  of  no  advantage  to 
him.  lie  declined  to  sign  the  note  extending  the  time  of  payment  to 
Waterman,  and  was  onl\-  induced  to  do  so  by  the  promise  of  Water- 
man, that  a  chattel  mortgage  should  be  taken  b}'  Waterman  upon  Sev- 
erson's property  for  Resseter's  benefit.  This  was  not  an  agreement  on 
the  part  of  Waterman  that  he  would  pay  any  portion  of  Severson's  debt 
to  himself,  or  in  anywise  release  either  Severson  or  Resseter  from  lia- 
bility. It  was  understood,  and  subsequent  events  proved  it  to  be  true, 
Severson  was  entirel}'  willing  to  execute  the  chattel  mortgage  to  Water- 
man. For  AVaterman,  in  violation  of  his  agreement  with  Resseter, 
subsequently  procured  a  cliattel  mortgage  from  Severson  to  secure 
other  indebtedness  due  from  Severson  to  Waterman,  and  for  which 
Resseter  was  not  security,  and  thereby  swept  away  the  property  of 
Severson,  which  he  agreed  with  Resseter  should  stand  as  indemnity  to 
him,  if  he  would  sign  the  note  extending  the  time  of  pa3ment. 

The  mere  promise  to  obtain  a  chattel  mortgage  was  not  indemnit}', 
nor  a  guaranty  of  indemnity.  Had  Waterman  procured  the  mortgage, 
and  thereb}'  have  fulfilled  his  promise  to  appellant,  it  is  plain  that  he 
would  not  have  discharged,  or  rendered  himself  liable  to  discharge,  or 
undertaken  to  pay  any  debt  or  obligation  of  Severson.  And  this  is  said 
to  be  "  a  conclusive  test"  as  to  whether  the  promise  is  within  the  statute. 
Krowne  on  Stat.  Fraud,  sec.  177.  The  case  of  Bushnell  v.  Beavan, 
siipra^  is  in  point.  There  the  defendant  promised  the  plaintifl!"s, 
owners  of  a  vessel,  of  which  H.  S.  was  in  charge,  etc.,  that  if  the}' 
would  let  H.  S.  sail,  he,  the  defendant,  would  get  T.  M.  to  sign  a 
guaranty  for  the  payment  of  freights  by  H.  S.  Upon  this  promise  H. 
S.  was  permitted  to  sail,  and  the  guaranty  was  not  procured,  and  it  was 


520  RESSETER   V.    WATERMAN.  [CHAP.    IV. 

held,  that  the  promise  of  the  defendant  was  not  within  the  statute  of 
frauds,  and  a  recover}'  was  allowed,  H.  S.  having  defaulted.  The 
soundness  of  this  holding  was  for  a  time  questioned  (Green  v.  Cress- 
well,  10  A.  &  E.  453  ;  Carville  v.  Crane,  5  Hill,  483),  but  is  now  gen- 
erally acquiesced  in  b}-  the  courts  and  practically  all  of  the  recent  text 
writers. 

It  is,  however,  insisted,  that  the  views  here  expressed  are  in  conflict 
witli  Scott  V.  Thomas,  1  Scam.  58.  That  case  is  clearly  distinguishable 
in  principle  from  the  case  at  bar.  Tiiomas  sued  Scott  in  assumpsit, 
alleging  that  Biggs  was  indebted  to  him  upon  a  proraissorj'  note,  and 
that  the  defendant  held  a  mortgage  npon  a  tract  of  land  executed  by 
Biggs.  That  plaintiff's  note  was  past  due,  and  that  the  defendant 
agreed,  that  in  consideration  of  forbearance  to  sue  Biggs  on  said  note, 
if  Biggs  did  not  pa}'  it  by  the  next  term  of  court,  that  he,  the  defendant, 
would  foreclose  said  mortgage,  and  that  plaintiff  might  bu}-  the  land  in 
at  the  foreclosure  sale  for  Si.  25  per  acre,  if  it  did  not  sell  for  more,  and 
that  the  plaintiff  should  first  satisfy  his  own  debt,  and  pa}-  the  surplus, 
if  any,  over  to  the  defendant ;  that  he  did  forbear  to  sue  ;  that  the  note 
was  not  paid,  and  that  the  defendant  did  not  foreclose  his  mortgage. 
Tiiis  promise  was  held  to  be  within  the  Statute  of  Frauds.  It  is  mani- 
fest, that  there  was  there  an  obligation  from  Biggs  to  pay  the  note, 
which  could  be  enforced  at  law,  and  the  promise  of  Scott  was  to  pay 
that  debt.  It  was  immaterial  that  the  promise  was  that  the  debt  should 
be  paid  out  of  the  proceeds  of  the  sale  of  the  land,  prior  to  the  satis- 
faction of  Scott's  mortgage.  The  effect  of  the  agreement  was  the 
promise  b}'  Scott  to  pay  Biggs'  debt  to  Thomas,  and  was  properly  held 
to  be  within  the  statute.  The  sole  undertaking  of  Thomas  was  col- 
lateral to  the  oi'iginal  promise  of  Biggs.  The  distinction  between  the 
two  cases  is  too  apparent  to  require  discussion. 

What  has  already  been  said  disposes  of  the  contention  that  there 
was  no  consideration  for  the  promise  of  Waterman.  Not  only  was 
Resseter  thereby  induced  to  place  himself  in  a  worse  position,  but 
Waterman  was  left  in  a  more  advantageous  position,  whereby  he  was 
enabled  to  control  the  disposition  of  Severson's  property.  If  he  had 
carried  out  his  agreement,  an}'  balance  left  after  paying  the  indebted- 
ness for  which  appellant  was  surety,  would  have  been  in  his  hands  for 
application  upon  other  indebtedness  due  from  Severson.  It  needs  the 
citation  of  no  authority,  that,  if  the  transaction  was  of  advantage  to 
Waterman,  or  detrimental  or  to  the  disadvantage  of  Resseter,  it  would 
form  a  sufficient  consideration  for  the  promise.  That  Resseter  was  in- 
duced thereb}'  to  consent  to  the  extension  of  the  time  of  pa3'ment  to 
Severson  and  continue  his  liability  as  surety,  and  forego  his  right  to 
then  compel  payment  out  of  Severson's  propert}',  which  b}'  the  failure 
of  Waterman  to  keep  his  promise  and  subsequent  conduct  in  violation 
of  it,  subjected  Resseter  to  the  loss,  is  not  questioned.  Bunting  v. 
Darbyshire,  75  III.  408  ;  Buchanan  v.  International  Bank,  78  id.  500 ; 
Burch  V.  Hubbard,  48  id.  164. 


SECT.    I.]  BAILEY   V.   MARSHALL.  521 

We  are  of  opinion,  that  the  Appellate  Court  erred  in  reversing  the 
judgment  of  the  Circuit  Court,  and  its  judgment  will  be  reversed,  and 
that  of  the  Circuit  Court  affirmed. 

Judgment  reversed. 


MARY  E.  BAILEY,   Appellant,  v.  JOSEPH  N.  MARSHALL. 
Pennsylvania  Supreme  Court,  January  Term,   1896. 

[Reported  in  174  Pennsylvania  State,  602.] 

Opinion  by  Mr.  Justice  Dean,  April  6,  1896  : 

Whether  the  debt  in  controversy  be  that  of  him  who  has  assumed 
to  pay  it,  or  of  another,  is  in  most  cases  a  question  of  fact.  There 
can  be  no  precise  legal  definition  of  liability  under  the  act  of  26th  of 
April,  1885,  P.  L.  308,  which  will  determine,  in  all  cases,  perhaps  in 
but  \evy  few,  the  answerabilit}'  of  him  who  promises  to  pa}'.  The 
act  saj's  :  "No  action  shall  be  brought  whereby  to  charge  .  .  .  th6 
defendant  upon  an}'  special  promise  to  answer  for  the  debt  or  default 
of  another  unless  the  agreement  .  .  .  shall  be  in  writing."  This  is 
clearly  meant  to  relieve  an  alleged  guarantor  or  suret}' ;  it  was  never 
intended  to  relieve  him  who  had  a  personal  beneficial  interest  in  the 
assumption.  There  cannot  be  a  better  construction  of  this  statute 
than  in  Nugent  u.  Wolfe,  111  Pa.  471,  where  we  held,  the  present 
chief  justice  rendering  the  opinion,  that:  "It  is  difficult,  if  not  im- 
possible, to  formulate  a  rule,  b}'  which  to  determine,  in  ever}'  case, 
whether  a  promise  relating  to  the  debt  or  liability  of  a  third  person  is 
or  is  not  within  the  statute  ;  but  as  a  general  rule,  when  the  leading 
object  of  the  promise  or  agreement  is  to  become  guarantor,  or  surety 
to  the  promisee  for  a  debt,  for  which  a  third  party  is  and  continues  to 
be  primarily  liable,  the  agreement,  whether  made  before  or  after  or 
at  the  time  with  the  promise  of  the  principal,  is  within  the  statute,  and 
not  binding  unless  evidenced  by  writing.  On  the  other  hand,  when  the 
leading  object  of  the  promisor  is  to  subserve  some  interest  or  purpose 
of  his  own,  notwithstanding  the  effect  is  to  pay,  or  discharge  the  debt 
of  another,  his  promise  is  not  within  the  statute." 

Applying  these  principles  to  the  facts  in  the  case  before  us,  to 
what  conclusion  do  they  impel  us?  In  September,  1892,  Mary  E. 
Bailey  held  a  note  against  Davis  Pennock  in  sum  of  61,000,  with 
power  of  attorney  to  confess  judgment.  At  this  time,  Marshall,  the 
defendant,  entered  a  judgment  against  Pennock  for  $5,000,  issued  exe- 
cution, and  levied  on  all  the  real  and  personal  property  of  Pennock  ; 
the  amount  actually  due  and  payable  on  his  $5,000  judgment  did  not 
exceed,  as  appeared  afterwards  from  his  own  statement,  $200.  The 
plaintiff  was  standing  there  with  her  judgment  ready  for  entry,  on 
which  she  could  immediately  issue  execution,  seize  and  bid  upon  the 
property ;  just  at  this  juncture,  Marshall,  knowing  her  rights,  sent  for 


622  MEYER   V.   HARTMAN.  [CHAP.    IV. 

ber  and  said :  "  I  will  stand  b}'  thee  and  see  thee  is  paid  every  cent 
if  thee  says  nothing  and  does  nothing."  She  accepted  his  proposi- 
tion, neither  entered  her  judgment  nor  took  any  steps  to  collect  it. 
The  sheriff's  sale  went  on,  and  Marshall  bought  the  larger  part  of  the 
real  and  personal  propert\-,  and  was  credited  on  his  purchase  with 
the  amount  of  his  own  judgment. 

We  notice  by  the  testimony  that  Marshall  denies  the  statement  of 
Mrs.  Bailey  ;  we  express  no  opinion  as  to  the  credibility  of  the  wit- 
nesses; the  question  is,  if  the  jury  believed  Mrs.  Baile^-'s  testimony, 
would  the  court  have  been  warranted  in  granting  the  compulsory  non- 
suit on  the  ground  that  the  promise  was  to  answer  for  the  debt  or 
default  of  another?  What  was  the  leading  object  of  Marshall  in  mak- 
ing the  promise  b}'  which  he  lured  her  to  inaction?  Clearly,  it  was  not 
to  pay  Fennock's  debt,  nor  Mrs.  Bailey's  claim.  His  sole  purpose  was 
to  silence  her  as  an  antagonistic  bidder  at  the  sherifTs  sale  ;  this  was 
no  benefit  to  Pennock,  the  debtor ;  it  was  an  advantage  to  Marshall, 
and  he  reaped  the  full  fruits  of  it ;  she  was  silenced  by  his  promise, 
and  he  got  the  property  at  his  own  figure.  His  leading  object  was  to 
subserve  his  own  interest ;  in  fact,  he  had  no  other  object ;  having 
accomplished  it,  he  is  now  called  upon  to  answer,  not  for  Pennock's 
debt,  but  for  his  own,  and  if  Mrs.  Bailej'  be  believed,  he  ought  to  pay. 

The  decree  of  the  court  below  entering  compulsory  nonsuit  is 
reversed,  and  procedendo  awarded.^ 


HENRY   MEYER  v.   WILLIAM   HARTMAN. 
Illinois  Supreme  Court,   June  Term,  1874. 

[Reported  in  72  Illinois,  442.] 

Mr.  Chief  Justice  Walker  delivered  the  opinion  of  the  Court: 
It  appears  that  appellee  brought  a  suit  against  appellant,  and  had 
him  arrested  on  a  capias  ad  respondendum.  The  matter  was  arranged 
b}'  appellant  transferring  to  appellee  notes  for  $1,000,  secured  by  a 
mortgage,  and  an  order  on  one  Theis  for  $62,  which  was  paid.  Appel- 
lee's claim,  which  was  thus  settled,  amounted  to  between  $700  and 
$800.  The  arrangement  was,  that  the  notes,  which  were  indorsed, 
and  the  order,  were  to  satisfy  appellee's  claim,  and  he  was  to  pa}'  a 
debt  of  $500  owing  by  appellant  to  Nissen,  Steinraeyer  &  Co.  The 
transfer  of  the  notes  and  order  was  not  as  collateral  security,  but  they 
were  sold  and  assigned  to  appellee  for  the  specified  consideration. 

Appellee  subsequently  received  on  the  notes  $800  in  satisfaction 
thereof,  and  refused  to  pay  the  note  to  Nissen,  Steinmeyer  &  Co.,  or 
any  part  of  it.     Appellant  thereupon  sued  appellee  in  assumpsit.     The 

1  The  cases  are  collected  in  Ames's  Cas  Suretyship,  72-84. 


SECT.   I.  I  MEYER    V.    HARTMAN".  628 

first  count  was  special  on  the  contract,  and  there  were  also  the  com- 
mon counts, 

Appellee  filed  the  plea  of  non-assumpsit,  and  subsequenth'  asked 
leave  to  file  a  plea  of  the  Statute  of  Frauds,  but  the  court  refused  to 
grant  leave.  A  trial  was  had  b\'  the  court  without  a  jur}-,  b}-  consent 
of  the  parties.  The  issues  were  found  for  the  defendant,  and  judg- 
ment was  rendered  against  plaintiff  for  costs,  and  he  brings  the  record 
to  this  court  and  asks  a  reversal. 

In  any  view  of  the  case,  on  the  evidence  presented  in  this  record, 
ap[)ellant  is  entitled  to  recover. 

There  seems  to  be  no  question  that  appellant  gave  to  appellee  §1,000, 
in  good  notes,  secured,  and  well  secured,  by  mortgage,  and  $62,  which 
he  received  on  an  order,  and  appellee  does  not  pretend  to  account  for 
but  $800,  applied  to  his  own  debt.  He  does  not  pretend  that  he  did 
not  agree,  as  a  part  of  the  consideration  for  the  notes  and  order,  that 
his  debt  was  satisfied,  and  that  he  was  to  pay  Nissen,  Steinmeyer  & 
Co.  tiie  debt  appellant  owed  them.  He  could  have  received  certainly 
$200  more  on  the  notes  than  he  did.  That  amount  was  recklessly 
thrown  away  and  squandered.  He  was,  at  all  events,  bound,  even  if 
he  was  not  liable  to  pay  Nissen,  Steinme^'er  &  Co.,  to  act  in  good 
faith,  and  collect,  if  it  could  be  done,  all  tliat  was  due  on  the  notes  he 
received  from  appellant,  both  principal  and  interest,  and  was  liable, 
even  if  onl}'  acting  as  an  agent,  for  all  he  remitted  and  gave  to  the 
maker  of  the  notes. 

He,  however,  was  liable  for  more  than  the  loss.  He  is  responsible 
for  the  breach  of  the  contract,  and  all  damages  growing  out  of  it.  It 
was  made  on  a  sufficient  consideration,  was  not  illegal  or  opposed  to 
public  policy,  and  was  obligator}'  on  him;  nor  could  the  Statute  of 
Frauds  avail,  even  had  the  plea  been  interposed. 

In  Wilson  v.  Bevans,  58  111.  232,  it  was  said  :  "  The  general  rule  is, 
that,  if  the  promise  is  in  the  nature  of  an  original  undertaking  to  pay 
the  debt  of  a  third  part}',  and  is  founded  on  a  valuable  consideration 
received  by  the  promisor  himself,  it  is  not  within  the  provisions  of  the 
statute,  and  need  not  be  in  writing,  to  make  it  valid  and  binding."  It 
was  there  said,  that  the  promisor  received  the  property',  and  it  is  wholly 
immaterial  to  him  what  direction  was  given  to  the  purchase  money ; 
that  it  was  his  contract  to  pay  the  money  to  the  vendor's  creditors,  and 
such  a  contract  is  valid  and  binding  in  law,  although  it  is  not  evidenced 
by  a  writing.  See  Runde  v.  Runde,  59  111.  98.  These  cases  must 
control  this,  as  it  is,  in  principle  and  in  its  facts,  similar  in  all  essential 
particulars. 

Appellant  was,  then,  entitled  to  recover  an  amount  equal  to  Nissen, 
Steinmeyer  &  Co.'s  debt,  as  appellee  had,  on  a  sufficient  consideration, 
promised  to  pay  it.  but  had  broken  his  contract. 

It  is  also  objected  tliat  appellee's  wife  was  not  a  competent  witness 
in  his  behalf  The  5th  section  of  the  act  of  1867,  in  relation  to  evi- 
dence, declares  that  nothing  in  the  1st  section  of  the  act  shall  render 


524  STJTTON  &   CO.   V.    GREY.  [CHAP.   rV. 

t!ie  husband  and  wife  competent  witnesses  for  or  against  each  other, 
unless  in  specified  cases,  of  which  this  is  not  one.  The  court,  there- 
fore, erred  in  permitting  the  wife  to  testify. 

The  judgment  of  the  court  below  must  be  reversed  and  the  cause 
remanded. 

Judgment  reversed} 


SUTTON    &   CO.   V.   GREY. 
In  the  Court  of  Appeal,  November  24,   1893. 

[Reported  in  [1894]  1  Queen's  Bench,  285.] 

Lord  Esher,  M.  R.  In  mj-  opinion  this  appeal  should  be  dis- 
missed. I  think  that  the  judgment  of  Bowen,  L.  J.,  was  in  every 
respect  right.  I  do  not  think  that  the  relation  between  the  plaintiffs 
and  the  defendant  was  that  of  partnership.  They  had  no  intention 
to  become  partners,  and,  as  the  law  now  stands,  a  partnership  cannot 
be  constituted  without  such  an  intention.  In  my  opinion  the  true 
relation  between  the  plaintiffs  and  the  defendant  was  this :  The 
plaintiffs  being  brokers  upon  the  Stock  Exchange,  of  which  the  defend- 
ant was  not  a  member,  they  agreed  together  that  the  plaintiffs  should 
carr}-  out  transactions  upon  the  Stock  Exchange  for  the  mutual  benefit 
of  themselves  and  the  defendant.  The  defendant  could  not  himself 
transact  business  upon  the  Stock  Exchange,  and  the  plaintiffs  made 
this  arrangement  with  him  :  "If  you  will  find  persons  who  wish  to 
operate  upon  the  Stock  Exchange  and  will  introduce  them  to  us  as 
clients,  we  will,  on  behalf  of  the  persons  whom  you  thus  introduce 
to  us,  transact  the  ordinary  business  of  a  broker  on  the  Stock  Ex- 
change, and  make  ourselves  personall}'  responsible  according  to  its 
rules  on  these  terms  —  that  our  brokers'  commission  on  the  Stock 
Exchange  shall  be  divided  between  us  and  j'ou,  just  as  if  you  were  our 
partner  and  a  member  of  the  Stock  Exchange,  and  that,  if  there  should 
be  a  loss  in  i-espect  of  the  transactions,  you  shall  indemnifj'  us  against 
half  the  loss."  The  defendant  verbally  agreed  to  this,  but  there  was 
not  any  contract  or  memorandum  in  writing.  The  contract,  in  my 
opinion,  is  one  which  regulated  the  part  which  the  defendant  was  to 
take  in  the  transactions  which  were  contemplated,  and,  if  he  was  to  be 
an  agent  for  the  plaintiffs,  the  contract  regulated  the  terms  of  his 
agency.  Again,  before  the  transactions  were  entered  into,  the  terms 
were  regulated  b}-  the  agreement,  and  thej'  were  such  as  to  give  the 
defendant  an  interest  in  the  transactions.     The  transactions  were  to 

^  Many  cases  in  accord  are  collected  in  Ames's  Cas.  Suretyship,  32.  In  most  juris- 
dictions in  this  country  Nissen,  Steinmeyer  &  Co.  might  also  have  sued  the  defendant 
on  his  promise  to  pay  them,  and  the  Statute  of  Frauds  would  not  have  been  applicable 
to  Buch  suit.     Ames's  Cas.  Suretyship,  39. 


SECT.   I.]  SUTTON   &    CO.    V.    GREY.  525 

be  entered  into  by  the  plaintiffs  parti}'  for  their  own  benefit  and  partly 
for  the  benefit  of  the  defendant.  Is  such  a  contract  a  simple  contract 
of  guarantee  —  "a  special  promise  to  answer  for  the  debt  or  default  of 
another  person  "  —  so  as  to  bring  the  case  within  sec.  4  of  the  Statute 
of  P'rauds,  or  is  it  a  contract  of  indemnitj"?  "Whether  an}'  contract  is 
the  one  or  the  other  is  often  a  very  nice  question.  Bui  certain  tests 
have  been  laid  down  to  guide  the  Court  in  determining  under  which 
head  any  particular  contract  comes.  The  principal  case  in  English 
law  which  affords  such  a  guide  is  Couturier  i\  Haslie,  8  Ex.  40.  In 
that  ease  a  test  was  given  by  Parke,  B.,  who  delivered  the  judgment 
of  himself  and  Alderson,  B.  (from  whom  Pollock,  C.  B.,  differed  as  to 
the  construction  of  the  contract).  The  learned  judge  said  (at  p.  5j)  : 
"  The  other  and  onl}'  remaining  point  is,  whether  the  defendants  are 
responsible  by  reason  of  their  charging  a  del  credere  commission, 
though  they  have  not  guaranteed  by  writing  signed  b}"  themselves. 
We  think  thev  are.  Doubtless,  if  the}'  had  for  a  percentage  guaranteed 
the  debt  owing,  or  performance  of  the  contract  by  the  vendee,  being 
totally  unconnected  with  the  sale  "  (I  would  read  that  "  totally  un- 
connected with  the  transaction  ")  "  they  would  not  be  liable  without  a 
note  in  writing  signed  by  them  ;  but,  being  the  agents  to  negotiate  the 
sale"  (that  is,  as  I  read  it,  "being  connected  with  the  transaction"), 
"the  commission  is  paid  in  respect  of  that  employment;  a  higher 
reward  is  paid  in  consideration  of  their  taking  greater  care  in  sales  to 
their  customers,  and  precluding  all  questions  whether  the  loss  arose 
from  negligence  or  not,  and  also  for  assuming  a  greater  share  of 
responsibility  than  ordinary  agents,  namely,  responsibility  for  the  sol- 
vency and  performance  of  their  contracts  by  their  vendees.  This  is 
the  main  object  of  the  reward  being  given  to  them  ;  and,  though  it 
may  terminate  in  a  liability  to  pay  the  debt  of  another,  that  is  not  the 
immediate  object  for  which  the  consideration  is  given."  There  the 
test  given  is,  whether  the  defendant  is  interested  in  the  transaction, 
either  by  being  the  person  who  is  to  negotiate  it  or  in  some  other  way, 
or  whether  he  is  totally  unconnected  with  it.  If  he  is  totally  uncon- 
nected with  it,  except  by  means  of  his  promise  to  pay  the  loss,  the 
contract  is  a  guarantee ;  if  he  is  not  totally  unconnected  with  the 
transaction,  but  is  to  derive  some  benefit  from  it,  the  contract  is  one 
of  indemnity,  not  a  guarantee,  and  sec.  4  does  not  apply.  The  rule  thus 
laid  down  has  been  adopted  as  a  test  in  subsequent  cases.  In  Fitz- 
gerald V.  Dressier,  7  C.  B.  (n.  s.)  374,  Cockburn,  C.  J.,  said  (at  p.  392)  : 
"  The  law  upon  this  subject  is,  I  think,  correctly  stated  in  the  notes  to 
Forth  V.  Stanton,  1  "Wms.  Saund.  211  e,  where  the  learned  editor  thus 
sums  up  the  result  of  the  authorities  —  '  There  is  considerable  difficulty 
in  the  subject,  occasioned  perhaps  by  unguarded  expressions  in  the 
reports  of  the  different  cases  ;  Init  the  fair  result  seems  to  be  that  the 
question  whether  each  particular  case  comes  within  this  clause  of 
the  statute  (sec.  4)  or  not  depends,  not  on  the  consideration  for  the 
promise,  but  on  the  fact  of  the  original  party  remaining  liable,  coupled 


526  SUTTON   &   CO.    V.    GREY.  [CHAP.   IV. 

with  the  absence  of  any  liability  on  the  part  of  the  defendant  or  his 
propert}',  except  such  as  arises  from  his  express  promise.'  I  quite 
concur  in  that  view  of  the  doctrine,  provided  the  proposition  is  con- 
sidered as  embracing  the  qualification  at  the  conclusion  of  the  passage  ; 
for,  though  I  agree  that  the  consideration  alone  is  not  the  test,  but 
that  the  part}-  taking  upon  himself  the  obligation  upon  which  the 
action  is  brought  makes  himself  responsible  for  the  debt  or  default  of 
another,  still  it  must  be  taken  with  the  qualification  stated  in  the  note 
above  cited,  viz.,  an  absence  of  prior  liabilit}'  on  the  part  of  the 
defendant  or  his  propert}',  it  being,  as  I  think,  truly  stated  there  as 
the  result  of  the  authorities,  that  if  there  be  something  more  than  a 
mere  undertaking  to  pay  the  debt  of  another,  as,  where  the  property 
in  consideration  of  the  giving  up  of  which  the  party  enters  into  the 
undertaking  is  in  point  of  fact  his  own,  or  is  property  in  which  he  has 
some  interest,  the  case  is  not  within  the  provision  of  the  statute,  which 
was  intended  to  applv  to  the  case  of  an  undertaking  to  answer  for  the 
debt,  default,  or  miscarriage  of  another,  where  the  person  making 
the  promise  has  himself  no  interest  in  the  property  which  is  the  subject 
of  the  undertaking.  I,  therefore,  agree  with  m}'  learned  brothers  that 
this  case  is  not  within  the  Statute  of  Frauds."  The  learned  judge 
there  used  these  words,  "  has  himself  no  interest  in  the  property  which 
is  the  subject  of  the  undertaking,"  because  he  was  dealing  with  a  case 
of  property  ;  but  if  his  words  be  read,  as  I  think  they  should  be,  "  has 
no  interest  in  the  transaction,"  he  is  adopting  that  interpretation  of 
Couturier  v.  Hastie,  8  Ex.  40,  which  I  think  is  the  right  one.  Then 
again,  in  Fleet  v.  Murton,  Law.  Rep.  7  Q.  B.  at  p.  133,  Blackburn,  J., 
quotes  the  passage  which  I  have  read  from  the  judgment  of  Parke, 
B.,  in  Couturier  v.  Hastie,  siqyra^  a.n6.  thus  interprets  it:  "He  says 
that  it  is  neither  a  guai'anteeing  nor  a  contract  for  sale,  and  that 
consequently  the  Statute  of  Frauds  is  out  of  the  question.  It  seems 
to  me,  therefore,  as  Mr.  Cohen  said,  that  this  custom  must  be  taken  as 
merely  regulating  the  terms  of  the  employment."  If  in  the  present 
case  the  agreement  is  taken  as  regulating  the  terms  of  the  defendant's 
employment,  it  is  not  within  sec.  4  of  the  statute  ;  on  the  other  hand,  if 
tlie  transaction  is  looked  at  as  entered  into  partly  for  the  benefit  of 
the  plaintiffs  and  partly  for  the  benefit  of  the  defendant,  it  comes 
within  the  rule  laid  down  b}'  Parke,  B.,  in  Couturier  v.  Hastie,  supra, 
and  adopted  by  Cockburn,  C.  J.,  in  Fitzgerald  v.  Dressier,  7  C.  B.  (n.  s.) 
374.  The  contract  is  not  a  guarantee  with  regard  to  a  matter  in 
which  the  defendant  has  no  interest  except  by  virtue  of  the  guarantee ; 
it  is  an  indemnity  with  regard  to  a  transaction  in  which  the  defendant 
has  an  interest  equall}'  with  the  plaintiffs.  In  m}-  opinion,  Bowen, 
L.  J.,  was  right  in  holding  that  the  agreement  is  not  within  the  statute, 
and  his  decision  ought  to  be  affirmed.^ 

^  Cases  in  accord  are  collected  in  Ames's  Cas.  Saretyship,  67-71. 


SECT.   I.]      O'CONNELL  V.   MOUNT   HOLYOKE   COLLEGE,  627 


DANIEL   O'CONNELL,   JR.,    and   Others,   v.    MOUNT 
HOLYOKE   COLLEGE. 

Supreme  Judicial  Court  of  Massachusetts,  September  26- 
november  27,  1899. 

[Reported  in  174  Massachusetts,  511.] 

Contract,  to  recover  a  balance  due  on  the  following  order : 

"HoLTOKE,  Mass.,  Jany.  7th,  1897. 
"  To  A.  L.  WiLLiSTON,  Esq., 

"  Treas.  of  Mt.  Holyoke  College. 

"  1  hereby  authorize  you  to  pay  to  Daniel  O'Connell's  Sons,  on  the  tenth 
day  of  each  month,  such  sums  of  money  as  may  become  due  for  all  brick 
delivered  during  the  preceding  month.  Payments  to  be  made  on  a  basis  of 
seventy-five  per  cent,  as  shown  by  statements  presented  on  the  first  day  of 
each  month.  All  statements  presented  shall  correspond  to  the  tickets  issued 
and  signed  by  said  Auguste  Chas.  Valadier,  showing  the  amount  of  brick 
delivered.  The  final  payment  for  all  brick  delivered  to  be  paid  within  thirty 
days  (30)  after  all  the  brick  required  of  said  Daniel  O'Connell's  Sons  have 
been  delivered. 

"  Signed  in  presence  of 
"John  R.  Callahan.  Auguste  Chas.  Valadier." 

Trial  in  the  Superior  Court,  before  Matnard,  J.,  who,  at  the  close 
of  the  plaintiffs'  case,  ruled  that  the  plaintiffs  could  not  recover;  and 
they  alleged  exceptions,  which  appear  in  the  opinion. 

2\  D.  O'Brien^  for  the  plaintiffs. 
W.  G.  Bassett,  for  the  defendant. 

Knowlton,  J.  The  principal  question  in  this  case  is  whether  the 
defendant  bound  itself  by  an  oral  acceptance  or  promise  to  pay  in 
accordance  with  the  terms  of  the  order  or  authorization  delivered  to 
the  plaintiffs  by  Valadier,  It  appears  that  Williston,  the  defendant's 
treasurer,  wrote  to  the  plaintiffs  when  the  order  was  received,  saying 
that  the  defendant's  representatives  did  not  accept  orders,  but  promised 
in  his  letter  to  place  this  one  on  file,  and  to  pay  upon  it  so  long  as  it 
seemed  to  them  reasonable  and  expedient  so  to  do.  Thereupon  one 
of  the  plaintiffs,  accompanied  by  his  attorne}',  visited  Williston  and 
endeavored  to  obtain  from  him  an  unqualified  acceptance  of  the  order. 
The  plaintiffs  admit  that  on  this  occasion  Williston  absolute!}-  refused 
to  give  an  acceptance  in  writing,  but  contend  that  he  accepted  the 
order  oralh'.  If  we  assume  in  favor  of  the  plaintiffs,  without  deciding, 
that  there  was  evidence  from  which  the  jury  might  have  found  an 
absolute  oral  promise  to  pa}'  in  accordance  with  the  terms  of  the 
order,  and  assume  also  that  their  case  is  made  out  in  all  other  par- 
ticulars, we  come  to  the  question  whether  an  oral  promise  would  be 
binding  under  the  Statute  of  Frauds. 


528  O'CONTSTELL  V.   MOUNT   HOLYOKE   COLLEGE.      [CHAP.   IV. 

It  has  often  been  held  that  an  oral  acceptance  of  a  bill  of  exchange 
is  valid.  Pierce  v.  Kittredge,  115  Mass.  374  ;  Dunavan  v.  Flynn,  118 
Mass.  537;  Cook  v.  Baldwin,  120  Mass.  317;  Fisher  v.  Beckwith, 
19  Vt.  31  ;  Spaulding  v.  Andrews,  48  Penn.  St.  411  ;  4  Am.  &  Eng. 
P^ncvc.  of  Law  (2d  ed.),  219.  It  seems  that  this  rule  applies  equally 
to  an  oral  acceptance  or  promise  to  pay  made  for  a  valuable  considera- 
tion upon  an  order  for  the  payment  of  money,  which  by  reason  of 
uncertainty  as  to  the  time  or  amount  of  the  payment,  or  of  other 
contingencies,  is  not  technically  a  bill  of  exchange.  See  Grant  v. 
Wood,  12  Gray,  220;  Eastern  Railroad  v.  Benedict,  15  Gray,  289; 
Washburn  v.  Cordis,  15  Pick.  53  ;  Parkhurst  v.  Dickerson,  21  Pick. 
307  ;  Cook  v.  Wolfendale,  105  Mass.  401.  But  this  general  doctrine 
applies  only  to  bills  of  exchange  and  orders  which  are  not,  in  reference 
to  tlie  purposes  for  which  the}' are  given,  such  contracts  as  are  required 
to  be  in  writing  under  the  Statute  of  Frauds. 

In  the  present  case  the  question  is  whether  the  promise  of  Williston, 
if  he  orally  accepted  the  order,  was  a  promise  to  pay  the  debt  of 
Valadier,  as  distinguished  from  the  original  undertaking.  An  ex- 
amination of  the  papers,  in  connection  with  the  undisputed  facts, 
furnishes  an  answer  to  the  question.  The  order  or  authorization  is 
to  pay  to  the  plaintiffs  on  the  tenth  day  of  each  month  "such  sums  of 
money  as  may  become  due  for  all  brick  delivered  during  the  preceding 
month."  It  was  made  in  connection  with  a  contract  in  writing  under 
which  the  plaintiffs  were  to  furnish  brick  to  Valadier  and  he  was  to  pay 
for  them.  The  expression,  "  such  sums  of  mone}'  as  may  become  due 
for  all  brick  delivered  during  the  preceding  month,"  can  have  no  mean- 
ing except  as  a  recognition  of  a  contract  under  which  money  would 
continue  to  become  due  from  Valadier  to  the  plaintiffs  from  month  to 
month  in  the  future.  The  later  provisions  of  the  order  in  regard  to 
pa^-ment  follow  exactly  the  provisions  of  the  original  contract  between 
Valadier  and  the  plaintiffs.  The  writings  themselves  show  that  Valadier 
was  to  be  the  principal  debtor  for  the  brick,  and  that  the  order  was 
given  as  security  for  the  payment  of  his  debt.  The  subsequent  prom- 
ise of  the  defendant  to  pa}^,  if  there  was  such  a  promise,  was  nothing 
more  than  a  promise  to  pay  Valadier's  debt  according  to  the  terms  of 
his  contract  with  the  plaintiffs.  The  evidence  in  regard  to  the  nego- 
tiations with  Williston  is  in  harmony  with  this  view  of  the  relations 
of  the  parties.  There  is  no  evidence  in  the  case  that  would  warrant 
a  finding  that  the  brick  were  to  be  delivered  on  the  sole  credit  of  the 
defendant.  Bat  inasmuch  as  the  debt  was  primarily  Valadier's,  if  his 
liabilit}'  continued  and  the  brick  were  not  delivered  solely  on  the  credit 
of  the  defendant,  the  promise  is  within  the  Statute  of  Frauds.  In  this 
particular  the  case  is  not  distinguishable  from  Bugbee  v.  Kendricken, 
130  Mass.  437,  and  Swift  v.  Pierce,  13  Allen,  136. 

There  is  no  evidence  in  the  case  of  an}'  new  consideration  moving  to 
the  defendant  from  the  plaintiffs,  such  as  to  make  the  promise  of  the 
defendant  an  original  undertaking  standing  independently  of  Valadier's 


SECT.   I.]  HUNT   V.   HUNT.  529 

liability,  so  that  the  plaintiffs  could  look  to  either  or  both  of  them, 
within  the  principles  stated  in  Furbish  v.  Goodnow,  98  Mass.  296  ; 
Nelson  v.  Boynton,  3  Met.  396  ;  and  Curtis  v.  Brown,  5  Cush.  488. 
Upon  the  undisputed  facts  the  promise  relied  on  by  the  plaintiffs  was 
within  the  Statute  of  Frauds. 

In  this  view  of  the  ease  the  offer  of  the  plaintiffs  to  show  the  circum- 
stances under  which  they  brought  the  suit  in  the  District  Court  and 
the  reason  why  they  were  nonsuited  was  immaterial. 

Exceptions  overruled. 


B.  —  Agreebients  in  Consideration  of  Marriage. 


LENA   E.  HUNT,   Appellant,  v.  JOSEPH  T.  HUNT  et  al., 
Executors,  Respondents < 

New  York  Court  of  Appeals,  Mat  21-June  10,  1902. 

[Reported  in  171  New  York,  396.] 

Werner,  J.  This  action  was  brought  to  compel  the  specific  per- 
formance of  an  oral  antenuptial  contract  which  was  entered  into 
between  the  plaintiff  and  Wilson  G.  Hunt,  the  testator  of  the  defend- 
ants, prior  to  their  intermarriage  in  October,  1896.  Under  said  con- 
tract, and  in  consideration  of  plaintiffs  promise  to  marr}'  said  Wilson 
G.  Hunt,  the  latter  orally  agreed  to  give  the  former,  at  once,  the  sum 
of  five  thousand  dollars  in  mone}',  the  further  sum  of  two  dollars  and 
fift}'  cents  per  week,  the  income  of  a  house  and  lot  in  the  city  of 
Geneva,  N.  Y.,  to  convey  to  her  another  house  and  lot  in  the  same 
city,  and  to  make  a  will  giving  her  all  of  his  property*  except  a  watch 
and  two  hundred  dollars.  The  making  of  this  contract,  the  subsequent 
intermarriage  of  the  parties  thereto,  and  the  still  later  breach  of  the 
agreement  by  said  Wilson  G.  Hunt,  are  established  by  the  findings  of 
the  learned  trial  court,  and  upon  these  findings  it  based  the  conclusion 
of  law  that  plaintiff  is  not  entitled  to  recover  because  said  contract  is 
void  under  the  Statute  of  Frauds.  Under  the  unanimous  affirmance  of 
the  learned  Appellate  Division  the  only  question  brought  to  this  court 
by  the  appellant  is  whether  an  oral  antenuptial  contract,  founded  upon 
no  other  consideration  than  marriage,  can  be  specifically  enforced  in  a 
court  of  equity. 

The  statute  provides  that  '^  every  agreement  or  undertaking^made 
upon  consideration  of  marriage,  except  mutual  promises  to  marry,'' 
^all  be  void  unless  such  agreement  or  undertaking,  or  some  note  or 
memorandum  thereof,  be  in  writing  and  subscribed  by  the  party  to  be 
charged  therewith,  or  his  agent     (R.  S.  chap.  7,  tit.  2,  sees.  2  and  8). 

VOL.  I.  —  34 


530  HUNT   V.    HUNT.  [CHAP.    IV. 

The  learned  counsel  for  the  appellant  concedes  that  the  rontract  In 
suit  falls  within  the  scope  of  this  broad  statute,  but  argues  that  the 
intermarriage  of  the  parties  to  the  contract  is  such  a  part  performance 
thereof  as  to  invest  a  court  of  equity  with  the  power  of  specific 
enforcement.  The  argument  for  the  respondents  may  be  compressed 
into  the  single  statement  that  the  same  act  of  performance  which 
brings  the  contract  within  the  sweep  of  the  statute  cannot  be  relied 
upon  to  exclude  it  therefrom.  The  most  notable  feature  of  the  statute 
above  quoted  is  its  simplicity  and  directness  of  language.  All  con- 
tracts founded  upon  consideration  of  marriage,  except  mutual  promises 
to  marry,  shall  be  void  unless  the  commands  of  the  statute  are  obeyed. 
Mutual  executory  promises  to  marr}'  are  expressly  excluded  from  its 
operation.^  All  other  contracts,  founded  upon  consideration  of  rnar- 
riage,  are  as  clearly  within  its  terms.  These  two  diverse  provisions  ot 
tlie  statute,  standing  in  juxtaposition  to  each  other,  so  plainly  disclose 
the  legislative  intent  as  to  render  construction  unnecessary  if  not  im- 
possible. The  letter  of  the  law  bears  its  own  interpretation.  This 
view  of  the  statute  is  not  original.  Pomero}'  in  his  work  on  Contracts, 
under  the  head  of  "  specific  performance"  (2d  ed.,  sec.  Ill),  states  it 
most  forcibly  as  follows  :  "  When  a  verbal  contract  is  made  in  relation 
to  or  upon  the  consideration  of  marriage,  the  marriage  alone  is  not  a 
part  performance  upon  which  to  decree  specific  execution.  This  rule, 
which  is  firml>'  established,  is  based  upon  the  express  language  of  the 
statute.  A  promise  made  in  anticipation  of  a  marriage,  followed  by  a 
marriage,  is  the  exact  case  contemplated  b}'  the  statute.  It  is  plain 
that  the  marriage  adds  nothing  to  the  very  circumstances  described  by 
the  statutor}'  provision  which  makes  a  writing  essential ;  in  fact,  until 
a  marriage  takes  place,  there  is  no  binding  agreement  independent  of 
the  statute,  so  that  the  marriage  itself  is  a  necessary  part  of  ever}' 
agreement  made  upon  consideration  of  it  which  the  legislature  has  said 
must  be  in  writing."  Beach  in  his  Modern  Equit}'  Jurisprudence  (sec. 
622)  says :  "  It  is  well  settled  that  marriage  is  not  an  act  of  part  per- 
formance which  will  take  a  parol  contract  out  of  the  statute  ;  for  the 
statute  expressly  provides  that  a  contract  in  consideration  of  marriage 
shall  not  be  binding  unless  it  is  in  writing."  This  is  also  the  view  of 
the  statute  entertained  by  the  courts  of  England  and  the  courts  in 
other  jurisdictions  where  the  English  Statute  of  Frauds  has  been 
copied.  Caton  v.  Caton,  L.  R.  (  2  Eng.  &  Ir.  App.)  127,  affg.  s.  c, 
1  Ch.  App.  137;  Taylor  v.  Beech,  1  Ves.  Sr.  297;  Dundas  v.  Dutens, 
1  Ves.  196;  Lassence  v .  Tierney,  1  McN.  &  G.  551  ;  Warden  y.  Jones, 
23  Beav.  487 ;  Peek  v.  Peek,  77  Cal.  106  ;  Bradley  v.  Saddler,  54  Ga. 

1  Whether  the  statute  expressly  exchides  such  promises  or  not,  they  are  held  to  be 
valid,  though  oral.  Harrison  v.  Cage,  1  Lord  Ray.  386  ;  Cork  v.  Baker,  1  Stra.  34  (re- 
versing Philpot  V.  Walcot,  Skinner,  24*)  ;  Clark  v.  Pendleton,  20  Conn.  49.5;  Black- 
burn V.  Mann,  85  111.  222;  Short  v.  Stotts,  .58  Ind.  29  ;  Caylor  r.  Roe,  99  Ind.  1,5; 
Withers  v.  Richardson,  5  T.  B.  Mon.  94;  Morgan  v.  Yarborough,  5  La.  Ann.  316; 
Ogden  V.  Ogden,  1  Bland.  284 ;  Wilbur  v.  Johnson,  58  Mo.  600  ;  Barge  v.  Haslam,  88 
N.  W.  Rep.  516  (Neb.). 


SECT.    I.]  HUNT    V.    HUNT.  531 

681  ;  Mc Annuity  v.  McAnnulty,  120  111.  26  ;  Henry  v.  Henry,  27  Ohio 
St.  121. 

In  our  own  state  the  trend  of  the  decisions  is  in  the  same  direction. 
In  Brown  v.  Conger,  8  Hun,  635,  it  was  held  that  equity  cannot  enforce 
an  oral  contract  for  the  conveyance  of  lands  made  in  consideration  oi 
a  marriage  subsequently  consummated.     In  Dygert  v.  Remerschnider, 
32  N.  Y.  629,  this  court  enforced,  as  against  the  creditors  of  the  hus- 
band, an  oral  antenuptial  contract  under  which    the  latter  conveyed 
lands  to  his  wife,  but  the  decision  was  based  upon  the  distinct  ground 
that  the  payment  by  the  wife  of  some  of  the  husband's  debts  created 
an  independent  consideration  for  the  transfer,  and  in  his  discussion  of 
that  fact  Judge  Davies   said:    "Under  the  authorities,    I   think  she 
(the  wife)  had  no  right  based  solely  upon  the  consideration  of  marriage 
which  courts,  either  of  law  or  equity,  could  have  enforced."     To  the 
same  effect  are  Lamb  v.  Lamb,  18  App.  Div.  250;  Ennis  v.  Ennis,  48 
Hun,  11;  Whyte  v.  Denike,  53  App.  Div.  320;  Reade  v.  Livingston, 
3  Johns.  Chan.   481  ;  Borst  v.  Corey,  16  Barb.  136  ;   and  Matter  of 
Willoughby,  11  Paige,  257.     In  none  of  these  cases,  except  Brown  v. 
Conger,  supra,  was  the  question  presented  in  precisely  the  same  form 
as  in  the  case  at  bar,  but  in  all  of  them  the  validit}-  of  an  oral  ante- 
nuptial contract  was  a  pertinent  and  underlying  question  upon  which 
the  courts  have  held,  with  unvarying  uniformity',  that  marriage  is  not 
such  a  part  performance  of  an  oral  antenuptial  contract  as  to  take  it 
out  of  the  operation  of  the  Statute  of  Frauds.     Counsel  for  the  appel- 
lant vigorously  contends  that  in  the  case  at  bar  the  Statute  of  Frauds 
is  being  used  b}'  the  respondents  as  an  instrument  of  fraud,  and  that 
this  is  a  consummation  that  equit}'  never  tolerates.     In  support  of  this 
position  we  are  referred  to  such  cases  as  Freeman  v.  Freeman,  43  N.  Y. 
34;    Winchell  v.   Winchell,   100   N.  Y.   159;    Winne  v.  Winne,    166 
N.  Y.  263 ;  Ahrens  v.  Jones,  169  N.  Y.  555  ;  Goldsmith  v.  Goldsmith, 
145  N.  Y.  313  ;  Dunckel  v.  Dunckel,  141  N.  Y.  427,  and  other  cases 
in  which  equity  has  intervened  to  prevent  the  perpetration  of  fraud  in 
the  name  of  the  statute.     There  is  no  analogy  between  such  cases  and 
the  case  at  bar.     Courts  of  equity,  in  exercising  their  powers  upon  the 
Statute  of  Frauds,  are  bound  b}-  two  important  limitations.     The  first 
is  that  equity  will  never  interfere  where  there  is  an  adequate  remedy  at 
law,  Russell  v.  Briggs,  165  N.  Y.  500,  and  the  second  is  that  equity 
cannot  repeal  the  statute.     Dung  v.  Parker,  52  N.  Y.  494.     The  first 
of  these  limitations  has,  of  course,  no  application  to  the  case  at  bar 
because  the  ap[)ellant  is  clearlj'  without  a  reraed}'  at  law.     The  second 
of  these  limitations  is  applicable  here  for  the  reason  that  the  statute 
must  be  repealed  before  the  contract  in  suit  can  be  enforced.     It  is 
just  here  that  we  observe  the  essential  difference  between  this  case  and 
those  upon  which  the  appellant  relies.     In  the  latter  class  of  cases 
equity  intei'venes  because  the  language  of  the  statute  is  so  general  and 
elastic  as  to  compel,  or  at  least  permit,  the  presumption  that  it  was  not 
designed  to  operate  as  a  shield  for  fraud.     In  cases  like  the  one  at  bar 


532  rrrnTH  v.  geatta"  [chap.  it. 

the  language  of  the  statute  is  so  specific  and  rigid  that  no  presumption 
can  be  invoked  that  conflicts  with  the  letter  of  tlie  law,  although  in 
certain  cases  great  injustice  may  ensue. 

Counsel  for  the  appellant  also  insists  that  there  was  evidence  tending 
to  show  that  Wilson  G.  Hunt  made  a  will  in  pursuance  of  the  ante- 
nuptial contract  and  in  conforrait}'  with  its  terms,  and  that  this  fact,  of 
itself,  establishes  such  a  part  performance  of  the  contract  as  to  take  it 
out  of  the  statute.  We  cannot  discuss  this  question  upon  the  merits 
because  the  trial  court  has  made  no  finding  upon  the  subject.  We 
have  no  right  to  amplify  the  findings  of  fact  in  order  to  make  a  sufficient 
ground  for  reversal.     Hilton  v.  Ernst,  161  N.  Y.  227. 

The  judgment  herein  should  be  affirmed,  with  costs. 

Parker,  C.  J.,  Bartlett,  Haight,  Martin,  Vann,  and  Cullen,  JJ., 
concur. 

Judgment  affirmed.^ 


C.  —  Contract  for  the  Sale  of  Land. 

\l  

hirth  v.  graham. 

Ohio  Supreme  Court,  January  Term,  1893. 

[Reported  in  50  Ohio  State,  57.] 

Bradbury,  J.^  Tlie  plaintiff  in  error  brought  an  action  before  a 
justice  of  the  peace  to  recover  of  the  defendant  in  error  damages 
alleged  to  have  been  sustained  on  account  of  the  refusal  of  the  latter 
to  perform  a  contract  by  which  he  had  sold  to  the  plaintiff  in  error 
certain  growing  timber. 

The  defendant  requested  a  ruling  that  the  plaintiff  could  not  recover 
because  there  was  no  memorandum  of  the  contract.  The  justice  refused 
so  to  rule  and  judgment  was  given  for  the  plaintiff.  On  error  to  the 
court  of  Common  Pleas  this  judgment  was  affirmed,  but  on  error  to  the 
Circuit  Coui't  the  judgment  was  reversed.  To  reverse  the  judgment 
of  the  Circuit  Court  this  proceeding  is  pending. 

1  See  further,  Lloyd  v.  Fulton,  91  U.  S.  479 ;  Bradley  v.  Saddler,  54  Ga.  681 ;  Potts 
V.  Merrit,  14  B.  Men.  406;  Mallory's  Adm.  v.  Mallory's  Adm.,  92  Ky.  316;  Powell's 
Adm.  V.  Meyers,  64  S.  W.  Rep.  428  (Ky.)  ;  White  v.  Fiigelow,  154  Mass.  593  ;  Mow- 
ser  I'.  Mowser,  87  Mo.  437  ;  Carpenter  v.  Comrainiis,  51  Hun,  638  ;  Finch  r.  Finch,  10 
Ohio  St.  501  ;  Stanley  v.  Madison,  66  Pac.  Rep.  280  (Okl.)  :  Adams  v.  Adams,  17  Ore!?. 
247,  ace.  Compare  Houghton  v.  Houghton,  14  Ind.  505  ;  Flenner  v.  Flenner,  29  Ind. 
564  ;  Brenner  v.  Brenner,  48  Ind.  262  ;  Rainholt  v.  Rainbolt,  56  Ind.  .538 ;  Southerland 
V.  Southerland's  Adm.,  5  Bush.  591  ;  Gackenbach  v.  Brouse,  4  W.  &  S.  546;  Child  v. 
Pearl,  43  Vt.  224  ;  Larsen  /•.  Johnson,  78  Wis.  300. 

*  The  statement  in  the  opinion  has  been  shortened  and  a  portion  of  the  opinion 
relating  to  practice  in  justices  courts  has  been  omitted. 


SECT.    I.]  HIETH   V.   GRAHAM.  533 

"Whether  a  sale  of  growing  trees  is  the  sale  of  an  interest  in  or  con- 
cerning land  has  long  been  a  much  controverted  subject  in  the  courts 
of  England  as  well  as  in  the  courts  of  the  several  states  of  the  Union. 
The  question  has  been  different!}'  decided  in  different  jurisdictions,  and 
by  different  courts,  or  at  different  times  by  the  same  court  within  the 
same  jurisdiction.  The  courts  of  P^ngland,  particularlj",  have  varied 
widely  in  their  holdings  on  the  subject. 

Lord  Mansfield  held  that  the  sale  of  a  crop  of  growing  turnips  was 
within  this  clause  of  the  statute,  Emmerson  v.  Heelis,  2  Taunt.  38, 
following  the  case  of  Waddington  et  al.  v.  Bristow  et  al.,  etc.,  2  Bos. 
&  Pul.  452,  where  the  sale  of  a  crop  of  growing  hops  was  adjudged 
not  to  have  been  a  sale  of  goods  and  chattels  merelj'.  And  in  Crosby 
tJ.  Wadsworth,  6  East,  601,  the  sale  of  growing  grass  was  held  to  be 
a  contract  for  the  sale  of  an  interest  in  or  concerning  land,  Lord 
Ellenborough  saying:  "  Upon  the  first  of  these  questions"  (whether 
this  purchase  of  the  growing  crop  be  a  contract  or  sale  of  lands,  tene- 
ments, or  hereditaments,  or  any  interest  in  or  concerning  them),  "  I 
think  tliat  the  agreement  stated,  conferring,  as  it  professes  to  do,  an 
exclusive  right  to  the  vesture  of  the  land  during  a  limited  time  and  for 
given  purposes,  is  a  contract  or  sale  of  an  interest  in,  or  at  least  an 
interest  concerning  lands."     Id.  610. 

Afterwards,  in  Teal  v.  Aut}',  2  B.  &  B.  99,  the  court  of  common 
pleas  held  a  contract  for  the  sale  of  growing  poles  was  a  sale  of  an 
interest  in  or  concerning  lands.  Man}'  decisions  have  been  announced 
b}'  the  English  courts  since  the  cases  above  noted  were  decided,  the 
tendency  of  which  have  been  to  greatl}'  narrow  the  application  of  the 
fourth  section  of  the  Statute  of  Frauds  to  crops,  or  timber,  growing  upon 
land.  Crops  planted  and  raised  annuallv  by  the  hand  of  man  are  prac- 
tically withdrawn  from  its  operation/  while  the  sale  of  other  crops,  and 
in  some  instances  growing  timber,  also,  are  withdrawn  from  the  statute, 
where,  in  the  contemplation  of  the  contracting  parties,  the  subject  of 
the  contract  is  to  be  treated  as  a  chattel.  The  latest  declaration  of  the 
English  courts  upon  this  question  is  that  of  the  common  pleas  division 
of  the  high  court  of  justice,  in  Marshall  v.  Green,  1  C.  P.  Div.  35, 
decided  in  1875.  The  syllabus  reads :  "A  sale  of  growing  timber  to 
be  taken  away  as  soon  as  possible  by  the  purchaser  is  not  a  contract 
or  sale  of  land,  or  any  interest  therein,  within  the  fourth  section  of  the 
Statute  of  Frauds."  This  decision  was  rendered  by  the  three  justices 
who  constituted  the  common  pleas  division  of  the  high  court  of  justice, 

1  Marshall  v.  Ferguson,  23  Cal.  65  ;  Davis  v.  McFarlane,  37  Cal.  634 ;  Buh  v. 
Griswokl.  19  111.  631  ;  Meiiike  v.  Nelson,  56  111.  App.  269  ;  Northern  i-.  State,  1  Ind. 
113  ;  Bricker  v.  Hughes,  4  lud.  146  ;  Sherry  v.  Picken,  10  Ind.  375  ;  Cutler  v.  Pope, 
13  Me.  377  ;  Bryant  v.  Crosby,  40  Me.  9;  Purner  v.  Piercy,  40  Md.  212  ;  Whitmarsh 
V.  Walker,  1  Met.  313 ;  Smock  v.  Smock,  37  Mo.  App.  56  ;  Holt  >\  Holt,  57  Mo.  App. 
272;  Newcomb  y.  Ramer,  2  Johns  421,  note;  Bank  r.  Lansingburgh,  1  Barb.  542; 
Webster  r.  Zielly,  52  Barb.  482  ;  Brittain  v.  McKay,  1  Ired.  265  ;  Walton  r.  Jordan, 
65  N.  P.  170:  Carson  v.  Browder.  2  Lea,  701  ;  Kerr  v.  Hill,  27  W.  Va.  276,  ace.  Com- 
pare Powell  V.  Rich,  41  111.  466;  Powers  v.  Clarkson,  17  Kan.  218. 


53-i  HIRTH   V.   GRAHAM.  [CHAP.   IV. 

Coleridge,  C.  J.,  Brett,  and  Grove,  JJ,,  whose  characters  and  attain- 
ments entitle  it  to  great  weight ;  yet,  in  view  of  the  prior  long  period 
of  unsettled  professional  and  judicial  opinion  in  England  upon  the 
question,  that  the  court  was  not  one  of  final  resort,  and  that  the  deci- 
sion has  encountered  adverse  criticism  from  high  authority  (Benjamin 
on  Sales,  section  126,  ed.  of  1892),  it  cannot  be  considered  as  finally 
settling  the  law  of  England  on  this  subject. 

The  conflict  among  the  American  cases  on  the  subject  cannot  be 
wholly  reconciled.  In  Massachusetts,  Maine,  Maryland,  Kentucky, 
and  Connecticut,  sales  of  growing  trees  to  be  presently  cut  and  re- 
moved by  the  vendee,  are  held  not  to  be  within  the  operation  of  the 
fourth  section  of  the  Statute  of  Frauds.  Claflin  et  al.  v.  Carpenter, 
4  Mete.  (Mass.)  580 ;  Nettleton  v.  Sikes,  8  Mete.  (Mass.)  34  ;  Bost- 
wick  V.  Leach,  3  Day.  (Conn.)  476  ;  Erskine  v.  Phimmer,  7  Me.  447 ; 
Cutler  V.  Pope,  13  Me.  377  ;  Cain  v.  McGuire,  etc.,  13  B.  Mon.  340; 
Byassee  v.  Reese,  4  Mete.  (Ky.)  372  ;  Smith  v.  Bryan,  5  Md.  141.^  In 
none  of  these  cases  except  4  Met.  (Ky.)  373,  and  in  13  B.  Mon.  340, 
had  the  vendor  attempted  to  repudiate  the  contract,  before  the  vendee 
had  entered  upon  its  execution,  and  the  statement  of  facts  in  those  two 
cases  do  not  speak  clearl}^  upon  this  point.  In  the  leading  English 
case  before  cited,  Marshall  v.  Green,  1  C.  P.  Div.  35,  the  vendee  had 
also  entered  upon  the  work  of  felling  the  trees  and  had  sold  some  of 
their  tops  before  the  vendor  countermanded  the  sale.  These  cases, 
therefore,  cannot  be  regarded  as  directly  holding  that  a  vendee,  b}' 
parol,  of  growing  timber  to  be  presently  felled  and  removed,  may  not 
repudiate  the  contract  before  anything  is  done  under  it;  and  this  was 
the  situation  in  which  the  parties  to  the  case  now  under  consideration 
stood  when  the  contract  was  repudiated.  Indeed,  a  late  case  in  Massa- 
chusetts, Giles  V.  Simonds,  15  Gra}',  441,  holds  that,  "  The  owner  of 
land,  who  has  made  a  verbal  contract  for  the  sale  of  standing  wood  to 
be  cut  and  severed  from  the  freeliold  b}'  the  purchaser,  ma}-  at  any 
time  revoke  the  license  which  he  thereb}'  gives  to  the  purchaser  to 
enter  on  his  land  to  cut  and  carry  awa}-  the  wood,  so  far  as  it  relates 
to  any  wood  not  cut  at  the  time  of  the  revocation." 

The  courts  of  most  of  the  American  states,  however,  that  have  con- 
sidered the  question,  hold,  expressly,  that  a  sale  of  growing  or  standing 
timber  is  a  contract  concerning  an  interest  in  lands,  and  within  the 
fourth  section  of  the  Statute  of  Frauds.  Green  v.  Armstrong,  1  Denio, 
550;  Bishop  V.  Bishop,  1  Kernan,  123;  Westbrook  v.  Eager,  1  Harr. 
(N.  J.)  81  ;  Buck  v.  Pickwell,  27  Vt.  157 ;  Cool  v.  Box  &  Lumber  Co., 
87  Ind.  531  ;  Terrell  v.  Frazier,  79  Ind.  473  ;  Owens  v.  Lewis,  46  Ind. 
488  ;  Armstrong  v.  Lawson,  73  Ind.  498  ;  Jackson  v.  Evans,  44  Mich. 
510;  IaIc  v.  Shinnebarger,  17  Mo.  App.  66;  Howe  w.  Batchelder,  49 
N.  H.  204  ;  Putney  v.  Day,  6  N.  H.,  430  ;  Bowers  v.  Bowers,  95  Pa. 

1  Prater  v.  Campbell,  60  S.  W.  Rep.  918  (Ky),  ace.  See  also  Sterling  v.  Baldwin, 
42  Vt.  306. 


SECT.   I.]  LEE  V.    GASKELL.  635 

St.  477;  Daniels  v.  Bailey,  43  Wis.  566;  Lillie  v.  Dunbar,  62  Wis. 
198;  Knox  v.  Haralson,  2  Tenn.  Ch.  232.^ 

The  question  is  now,  for  the  first  time,  before  this  court  for  deter- 
mination ;  and  we  are  at  liberty  to  adopt  tliat  rule  on  the  subject  most 
comfortable  to  sound  reason.  In  all  its  other  relations  to  the  affairs 
of  men,  growing  timber  is  regarded  as  an  integral  part  of  the  land  upon 
which  it  stands  ;  it  is  not  subject  to  levy  and  sale  upon  execution,  as 
chattel  property  ;  it  descends  with  the  land  to  the  heir,  and  passes  to 
the  vendor  with  the  soil.  Jones  v.  Timmons,  21  Oliio  St.  596.  Coal, 
petroleum,  building-stone,  and  many  other  substances  constituting 
integral  parts  of  the  land,  having  become  articles  of  commerce,  and 
easily  detached  and  removed,  and,  when  detached  and  removed,  be- 
come personal  property*,  as  well  as  fallen  timber ;  but  no  case  is  found 
in  which  it  is  suggested  that  sales  of  such  substances,  with  a  view  ta 
their  immediate  removal,  would  not  be  within  the  statute.  Sales  of 
growing  timber  are  as  likely  to  become  the  subjects  of  fraud  and  per- 
jury, as  are  the  other  integral  parts  of  the  land,  and  the  question 
whether  such  sale  is  a  sale  of  an  interest  in  or  concerning  lands, 
should  depend,  not  upon  the  intention  of  the  parties,  but  upon  the  legal 
character  of  the  subject  of  the  contract,  which,  in  the  case  of  growing 
timber,  is  that  of  realt}*. 

This  rule  has  the  additional  merit  of  being  clear,  simple,  and  of  easy 
application,  qualities  entitled  to  substantial  weight  in  choosing  between 
conflicting  principles. 

Whether  circumstances  of  part  performance  might  require  a  modifica- 
tion of  this  rule,  is  not  before  the  court  and  has  not  been  considered. 

Judgment  affirmed. 


LEE  V.   GASKELL. 
In  the  Queen's  Bench  Division,  Mat  25,  1876. 

[Reported  in  1  Queens  Bench  Division,  700.] 

Statement  of  claim,  inter  alia,  that  plaintiff  sold  to  defendant  a 
gas-meter  and  certain  gas-fittings  then  in  a  certain  mill.  The  plaintiflT 
furnished  defendant  with  a  bill  for  the  meter  and  fittings,  amounting 
to  llZ.  18s.  8d.,  which  the  defendant  promised  to  pay,  but  has  not  paid. 

Statement  of  defence :  Defendant  denies  the  sale  as  alleged  and  that 
he  received  the  bill  and  promised  to  pay  it  as  alleged.  That  there  was 
no  note  or  memorandum  of  the  bargain  in  writing  signed  b}'  the 
defendant   or   his   agent,  nor   did  be    accept   part  of  the  goods  and 

^  Haflin  v.  Bingham,  56  Ala.  574  ;  Coody  r.  Gress  Lumber  Co.,  82  Ga.  79.3  ;  Hostet- 
ter  V.  Auman,  119  Ind.  7;  Harrell  v.  Miller,  35  Miss.  700;  Walton  r.  Lowrey,  74 
Miss.  484 ;  Mizell  ?•.  Burnett,  4  Jones  (N.  C),  249 ;  Clark  i-.  Guest,  54  Ohio  St.  298 ; 
Miller  v.  Znfall,  113  Pa.  317 ;  Fluharty  v.  Mills,  49  W.  Va.  446 ;  Seymour  v.  Cushway, 
100  Wis.  580,  arc. 

A  sale  of  bark  on  standing  trees  is  similar.     Thomson  v.  Poor,  57  Hun,  285. 


536  LEE   V.    GASKELL.  [CHAP.   IV. 

actuall}'  receive  the  same,  nor  did  he  give  anything  as  earnest  money 
or  as  part  payment,  within  29  Car.  2,  e.  3,  s.  17. 

At  tlie  trial  before  Brett,  J.,  at  the  Manchester  spring  assizes,  it 
appeared,  as  to  this  part  of  the  plaintiff's  claim,  that  the  defendant 
was  landlord  of  the  mill  in  which  the  fixtures  were,  they  were  tenant's 
fixtures,  and  the  tenant  had  become  bankrupt,  and  the  trustee  sold 
them  to  the  plaintiff,  and  he  afterwards  sold  them  to  the  defend- 
ant for  the  sum  claimed.  It  was  objected  that  the  contract  came 
within  either  sec.  4  or  sec.  17  of  the  Statute  of  Frauds;  and  the 
learned  judge  directed  judgment  for  the  defendant,  giving  leave  to 
move  to  enter  judgment  for  the  plaintiff. 

J.  Edwards,  Q.  C,  for  the  plaintiff,  moved  accordingly.  This  waa 
not  a  contract  within  either  section  of  the  Statute  of  Frauds.  Hallen 
V.  Runder,  1  C.  M.  &  R.  266,  is  directly  in  point  that  such  a  contract 
is  neither  an  agreement  for  the  sale  of  an  interest  in  land  within  sec.  4, 
nor  an  agreement  for  the  sale  of  goods  and  chattels  within  sec.  17. 
This  case  is  recognized  as  good  law  in  the  notes  to  Greene  v.  Cole, 
2  Notes   Saund.  656. 

H.  Collins  (with  him  C.  Russell,  Q.  C),  for  the  defendant.  It  must 
be  admitted  that  Hallen  v.  Runder,  su])ra,  is  an  authority  that  such 
a  contract  is  not  one  relating  to  an  interest  in  land  within  sec.  4  ; 
but  there  is  no  decision  that  sec.  17  did  not  apply,  and  it  may  be 
observed  that  possession  had  been  taken  by  the  landlord,  who  was  the 
purchaser  in  that  case.  Here  the  sale  was  not  by  the  tenant  direct  to 
the  landlord,  but  from  the  tenant  or  his  trustee  to  the  plaintiff,  and  by 
him  to  the  landlord. 

[CocKBURN,  C.  J.  Is  it  more  than  the  sale  of  the  right  to  sever? 
the  fixtures  had  not  been  severed.] 

Bayley,  B.,  in  Hallen  v.  Runder,  1  C.  M.  &  R.  at  p.  269,  says: 
"  It  [the  sale]  effects  a  severance  when  the  purchase  is  complete,  but 
not  before."  The  purchase  here  was  complete  as  between  the  trustee 
and  the  plaintiff,  and  the  fixtures  therefore  had  become  chattels  by  the 
original  sale,  before  thej'  were  resold  to  the  defendant. 

[QuAiN,  J.  They  had  not  in  fact  been  severed  when  the  plaintiff 
sold  to  the  landlord  ;  what  have  we  to  do  with  any  original  sale  ?] 

Tlie  plaintiff  has  no  title  except  by  that  sale.  The  question  is 
treated  as  doubtful  in  Amos  and  Ferard  on  fixtures,  pp.  252-4,  where 
Parker  v.  Staniland,  11  East,  362,  is  cited,  in  which  it  was  held  that 
the  sale  of  a  growing  crop  of  potatoes  was  a  contract,  not  within  sec.  4, 
but  within  sec.  17.  Smith  v.  Surman,  9  B.  &  C.  561,  is  to  the  same 
effect ;  and  the  case  of  fixtures  is  very  analogous  to  that  of  growing 
crops,  as  is  pointed  out  by  Parke,  B.,  in  Hallen  v.  Runder,  1  C.  M.  & 
R.  at  p.  275. 

CocKBURN,  C.  J.  The  case  of  Hallen  v.  Runder,  1  C.  M.  &  R.  266, 
is  directly  in  point  and  binding  upon  us,  and  I  think  the  principle  on 
which  it  was  decided  was  perfectly  right.  Fixtures,  although  the}' 
may  be  removable  during   the  tenancy,  as  long  as   they  remain   un- 


SECT.    I.]  LA  VERY    V.   PUESELL.  637 

severed,  are  part  of  the  freehold,  and  you  cannot  dispose  of  them  to 
the  landlord  or  any  one  else  as  goods  and  chattel  because  they  are 
not  severed  from  the  freehold  so  as  to  become  goods  and  chattels. 
All  you  can  do  is  to  bargain  for  the  sale  of  them  as  fixtures,  which  are 
subject  to  the  right  of  the  tenant  to  remove  them  during  the  term,  but 
which  right  is  liable  to  be  lost  if  it  is  not  exercised  during  the  term. 
There  is  but  a  remote  analog}'  between  fixtures  and  growing  crops, 
but  there  is  this  obvious  distinction  between  them,  — fixtures,  when 
sold  as  fixtures,  are  intended  to  remain  where  they  are,  while,  as  to 
growing  crops,  it  is  the  express  intention  of  the  purchaser  to  remove 
them. 

Mellor  and  Quain,  JJ.,  concurred. 

Judgment  for  the  plaintiff} 


LA  VERY   V.   PURSELL. 
In  the  Chancery  Division,  February  16-23,  1888. 

[Reported  in  39  Chancery  Division,  508.] 

On  November  11,  1886,  the  defendant  sold  through  an  auctioneer 
the  building  materials  in  a  certain  standing  building.  By  the  conditions 
of  the  sale  the  materials  were  "to  be  taken  down  and  cleared  off 
the  ground  on  or  before  the  11th  of  Januar}'  next." 

On  December  17  the  defendant  returned  to  the  plaintiff  £100,  which 
the  plaintiff  had  paid  as  a  deposit,  and  informed  him  that  the  agreement 
must  be  considered  at  an  end.  Thereafter  the  plaintiff  was  excluded 
from  the  premises.  This  suit  was  brought  for  specific  performance  of 
the  agreement,  for  an  injunction  restraining  the  defendant  from  dealing 
with  the  materials  in  violation  of  his  agreement  with  the  plaintiff  and 
for  damages. 

Sir  A.  Watson,  Q.  C,  and  D.  L.  Alexander,  for  the  plaintiff. 

Morner,  Q.  C,  and  Hatfield  Green,  for  Pursell. 

Chittt,  J.*  I  now  come  to  the  serious  question  of  law,  whether  this 
contract  falls  within  sec.  4  of  the  Statute  of  Frauds,  as  the  defendants 
contend,  or  within  sec.  17,  as  the  plaintiff  contends.  Kow,  unquestion- 
abl}-  sec.  4  of  the  Statute  of  Frauds  has  been  often  considered  b}'  the 
courts,  and  I  do  not  think  I  am  wrong  in  saying  that,  in  part,  the 
section  itself  has  been  embedded  in  the  decisions.  But  it  is  useful 
from  time  to  time  to  refer  back  to  the  statute  ;  and  the  words  of  sec.  4, 
so  far  as  is  material,  are,  "  any  contract  or  sale  of  land,  tenements, 

1  Bostwick  V.  Leach,  3  Day,  476  ;  South  Baltimore  Co.  v.  MuUbach,  69  Md.  395  ; 
Moody  V.  Aiken,  50  Tex.  65,  ace.  See  also  Frear  v.  Hardenbergh,  5  Johns.  272 ; 
Benedict  v.  Beebee,  11  .Johns.  145  ;  Lower  v.  Winters,  7  Cow.  263. 

2  The  statement  of  the  case  has  been  abbreviated,  and  only  so  mnch  of  the  opinion 
printed  as  relates  to  the  question  whether  the  agreement  was  within  the  Statute  of 
Frauds. 


538  LAVERY   V.   PURSELL.  [CHAP.    IV. 

or  hereditaments,  or  any  interest  in  or  concerning  them."  Now  the 
legislature  evidentl}' thought  in  framing  that  4th  section  that  there  were 
some  contracts  of  so  important  a  nature  that  it  was  not  right  to  leave 
them  to  depend  on  the  slippery  testimony  of  men's  memories,  and 
therefore  that  there  should  be  some  note  or  writing  which  should  be 
preserved  to  authenticate  the  contract ;  and  contracts  of  this  class, 
that  is,  of  the  class  as  to  which  I  read  the  words,  are  within  those 
which  in  the  view  of  the  legislature  required  either  a  contract  in  writing 
signed  by  the  parties  to  it,  or  some  note  or  memorandum. 

What  is  this  contract?  On  the  one  side  it  is  said  to  be  a  contract 
nierel}'  for  the  sale  of  bricks  and  mortar  and  stone  and  building 
materials  ;  on  the  other  side,  that  it  is  the  sale  of  a  standing  house, 
but  a  standing  house  which  is  not  be  retained  as  a  standing  house  by 
the  purchaser,  but  one  which,  standing  at  the  time,  is  to  be  pulled 
down.  Quite  apart  from  authorit}',  it  would  strike  an}'  lawyer,  first  of 
all,  that  the  house,  which  is  standing  on  the  land,  is  a  tenement  or 
hereditament.  I  see  no  escape  from  it.  Tliis  house  happens  to  be  a 
very  large  and  important  house,  and  it  does  seem  strange  at  first 
sight  that  the  legislature  should  protect  me  if  I  sell  my  house  as  a 
thing  standing  and  not  to  be  taken  away,  and  should  require  that 
there  should  be  a  note  or  memorandum  of  that  contract :  but  that  if  I 
sell  my  house  which  is  now  standing,  and  which  is  to  be  pulled  down 
over  my  head  by  somebody  else,  that  that  should  be  considered  a  less 
important  contract,  and  that  no  writing  sliould  be  required.  The  thing 
sold,  as  it  stands  at  the  moment,  is  a  hereditament.  It  is  said  that 
there  is  no  interest  in  a  hereditament,  but  then  that  is  answered,  if  I 
am  right,  in  saying  that  the  standing  house  is  a  hereditament.  Then 
it  is  said  that  there  is  no  interest  in  the  soil.  That  is  true  in  this 
sense,  and  in  this  sense  onl}',  that  there  is  no  permanent  interest.  But  in 
this  contract,  and  in  fact  in  every  contract  of  this  kind,  there  must  be, 
and  is  here,  a  right  to  go  in  and  hold  for  the  purpose  of  pulling  down  ; 
and  that  again  seems  to  be  an  interest  in  the  hereditament  or  tenement. 
I  am  now  speaking  quite  apart  from  decision.  How  can  this  question 
be  answered,  taking  the  language  of  the  4th  section,  except  that  this  is 
a  contract  concerning  a  hereditament? 

Then  it  is  said  that  there  is  a  distinction,  and  that  the  intention  of 
the  parties  was  to  treat  the  house  as  a  chattel  and  so  bring  it  within  the 
17th  section.  I  can  understand  that,  without  any  difficulty,  where 
the  owner  of  the  house  is  to  pull  his  own  house  down  ;  but  I  have  the 
greatest  difficulty  in  following  the  argument  where  the  purchaser  is  to 
pull  the  house  down.  Indeed  there  is,  as  it  appears  to  me,  under  this 
contract,  first,  a  contract  concerning  a  hereditament,  and,  from  the 
very  nature  of  the  thing  and  the  time  which  must  be  occupied  in 
pulling  down  these  materials  (from  the  11th  of  November  to  the  lllh 
of  January  upon  the  contract,  and  which  upon  the  evidence  is  about  a 
reasonable  time  for  so  doing),  accompanied,  as  it  seems  to  me,  with  an 
interest  in  the   way  of  license  or  possession,  which   again  brings  it 


SECT.    I.]  LA  VERY   V.    PURSELL.  639 

within  the  scope  of  the  words  of  the  4th  section.  The  contract  itself 
speaks,  as  I  have  already  said,  in  the  second  clause,  of  possession  ; 
and  that  is  the  language  the  parties  have  used.  Of  course  on  read- 
ing the  whole  contract,  I  might  see  that  it  is  not  possession  simply 
ill  point  of  law,  but  something  less ;  but  on  reading  this  contract 
I  thiiii-c  possession  expresses  what  the  parties  meant  —  namely,  it 
is  to  be  possession,  although  it  is  for  a  limited  purpose  :  it  is  posses- 
sion for  the  purpose  of  taking  down  and  removing  the  materials.  The 
vendor^eems  to  consider  himself,  according  to  these  terms,  to  be  out . 
ofpossession,  because  b}-  the  12th  condition  he  reserved  a  right  of 
access.  It  is  not  necessary  to  go  ver}'  minutely  into  this  point,  but 
I  think  that  the  contract  does  purport  to  confer  on  the  purchaser  the 
right  to  be  there  for  the  purpose  of  taking  down  and  removing  the 
materials,  and  does  give  him  either  a  complete  or  a  qualified  posses- 
sion ;  but  still  a  possession  of  the  soil  itself  —  of  the  land,  tenements, 
and  hereditaments ;  certainlv  of  the  whole  of  the  house.  That  being 
so,  if  the  question  was  free  from  authority,  I  should  have  thought  that 
this  case  fell  within  the  statute.  Of  course  I  am  not  forgetting  the 
mode  in  which  the  property  is  sold.  It  is  sold  as  building  materials, 
and  if  the  intention  of  the  parties  prevailed  it  might  mean  that  it  is 
sold  as  a  chattel,  but  the  point  still  is  that  it  is  not  a  chattel  at  the 
time  of  the  sale  ;  and  the  Statute  of  Frauds,  so  far  as  I  can  see,  does 
not  enable  parties  to  say,  "  We  will  agree  to  treat  this  thing  as  a 
chattel,"  when  in  point  of  law  it  is  a  hereditament. 

Now  the  authoritj-  upon  which  the  plaintiff  relied  is  Marshall  v. 
Green,  1  C.  P.  D.  35.  In  that  case  the  subject-matter  of  the  contract 
was  standing  trees,  fit  to  be  cut  as  timber.  The  intention  of  the  parties 
unquestionabl}^  was  to  sell  and  bu}'  as  timber.  There  was  no  stipula- 
tion there  in  regard  to  possession,  but  it  was  a  part  of  the  terms  of 
the  contract  that  the  purchaser  should  cut,  and  of  course  part  of  the 
terms  of  the  contract  that  he  should  enter  for  that  purpose.  On  the 
facts  it  appeared  that  six  trees  had  been  cut  down  by  the  defendant, 
who  was  sued  for  the  wrongful  acts  of  cutting  down  the  trees.  The 
substantial  question  was  whether  the  defendant  was  a  trespasser  and 
wrongdoer  in  cutting  the  trees,  and  that  depended  upon  whether  he 
had  an  enforceable  contract  to  cut  the  trees.  He  had  cut  six  trees, 
and  then  a  notice  was  given  to  him  by  the  owner  of  the  trees  to  cut  no 
more.  After  that  he  entered  and  still  cut,  and  the  question  was  as  to 
his  liability  in  respect  of  those  trees.  Sir  Arthur  Watso7i  in  arguing 
this  case,  spoke  of  a  revocable  license,  but  the  Common  Pleas  Division 
appeared  to  consider  that  this  was  not  a  revocable  license,  because 
they  held  that  he  was  justified  in  cutting  the  trees  notwithstanding  the 
notice.  Then  the  trees  being  standing  trees  to  be  cut  b3'the  purchaser, 
the  court  held  that  it  was  not  within  the  4th  section.  Of  course  I  am 
bound  by  the  decision  itself,  and  I  am  bound  by  any  principle  of  law 
that  is  necessary  to  the  decision,  but  I  am  not  bound  b}'  the  decision 
beyond  that.     Now  the  court  appears  to  have  considered  that  there  was 


540  LA  VERY   V.   PURSELL.  [CHAP.   IV. 

no  interest  in  the  land.  I  agree  that  it  was  a  point,  if  I  ma}'  say  so 
with  great  respect,  that  required  a  good  deal  of  attention,  whether  a 
standing  tree  is  a  chattel  or  can  be  made  by  any  acts  of  the  parties  a 
chattel.  It  is  a  hereditament  at  the  time  when  the  contract  is  made. 
It  is  just  as  much  a  hereditament  in  point  of  law  as  a  house  which 
is  standing  on  the  land  and  just  as  much  so  as  the  mines  which  are 
underneath.  I  only  speak  now  as  a  real  property  lawyer.  I  am  bound 
of  course  by  the  English  law  to  say  that  a  tree  is  not  a  chattel.  Indeed 
if  a  man  were  indicted  for  larceny  of  a  tree  the  indictment  would  be 
quashed.  I  feel  a  little  difficulty  in  following  that  reasoning,  which, 
for  the  purposes  of  sec.  4,  through  the  intention  of  the  parties, 
changes  the  nature  of  the  property  from  realty  to  personalty,  but  I 
make  these  observations  merely  for  the  purpose  of  endeavoring  to 
get  at  the  principle  on  which  the  decision  turns  and  not  for  the  purpose 
of  making  an}'  unnecessary  comments  on  what  was  said.  The  Lord 
Chief  Justice  says,  and  I  thoroughly  agree  with  him,  that  it  is  difficult, 
if  not  impossible,  to  reconcile  all  the  authorities  in  these  matters.  He 
mentions  the  cases  which  referred  to  the  fructus  naturales  and  the 
fructus  industriales^  which  have  no  doubt  given  rise  to  a  considerable 
difference  of  opinion,  and  he  quotes  the  well-known  passage  in 
Williams'  Saunders,  vol.  i.  p.  395  (Duppa  v.  Ma^'o),  where  it  was 
said  that  where  the  parties  agree  that  the  thing  sold  shall  be  imme- 
diately withdrawn  from  the  land,  the  land  is  to  be  considered  as  a 
mere  warehouse  of  the  thing  sold,  the  contract  is  for  goods.  I  pause 
for  one  moment  to  say  that  I  am  always  myself  afraid  in  dealing 
with  propositions  of  law  to  use  metaphors.  They  are  ver}'  often  very 
convenient,  but  if  pressed  too  far  they  often  lead  to  erroneous  con- 
clusions. Taking  this  statement,  could  the  land  in  the  case  before  me 
be  considered  as  the  warehouse  for  the  building?  Why,  certainly  not. 
Such  a  contention  as  that,  on  the  mere  statement  of  it,  would  be  one 
which  could  not  be  permitted  in  a  court  of  justice.  I  say  that  merely 
to  follow  the  reasoning,  but  when  the  case  is  examined  as  a  whole  it 
will  be  seen  that  the  judgment  turned  upon  this,  that  they  considered 
that  as  the  trees  were  to  be  cut  down  as  soon  as  possible,  and  were 
almost  immediately  cut  down,  the  thing  sold  was  a  chattel.  A  point  was 
taken  with  reference  to  the  statement  by  Lord  Justice  Brett,  1  C.  P.  D. 
42:  "With  respect  to  the  first  point,  when  the  subject-matter  of  the 
contract  is  something  affixed  to  land,  the  question  is  whether  the  con- 
tract is  intended  to  be  for  the  purchase  of  the  thing  affixed  only,  or 
of  an  interest  in  the  land  as  well  as  the  thing  affixed."  I  think 
upon  that,  that  the  Lord  Justice  did  not  intend  to  draw  an}'  such  dis- 
tinction as  to  the  word  commented  on  —  that  the  tree  was  affixed  or 
was  a  fixture.  I  can  see  nothing  in  the  argument  founded  on  that 
proposition.  The  true  basis  of  his  judgment  is,  I  think,  to  be  found 
in  the  same  page,  where  he  says  :  "  The  contract  is  not  for  an  interest 
in  the  land,  but  relates  solely  to  the  thing  sold  itself." 

Though  that  case  may  be  open  hereafter  to  further  consideration,  of 


SECT.    I.]  LONG   V.    WHITE.  541 

course  I  cannot  reconsider  it,  nor  can  I  differ  from  it.  It  is  evident 
that  if  that  view  is  riglit,  which  I  will  assume  it  to  be,  a  line  must  be 
drawn  somewhere,  because,  if  this  principle  were  carried  to  the  full 
extent,  there  being  no  distinction  between  the  timber  on  the  land  in 
point  of  law  and  the  mines,  then  it  would  have  to  be  said,  following 
out  what  the  plaintiff  says  was  the  principle  of  this  decision,  that  a 
contract  for  all  the  coal  or  minerals  under  a  man's  land,  with  a 
license  to  enter  and  get  it,  is  not  within  sec.  4.  Some  explanation 
wh}'  that  should  be  was  attempted  to  be  given  by  plaintiff's  counsel, 
but  without  success.  The  answer  perhaps  is,  that  courts  of  justice 
ought  not  to  be  puzzled  by  such  old  scholastic  questions  as  to  where 
a  horse's  tail  begins  and  where  it  ceases.  You  are  obliged  to  say, 
"  This  is  a  horse's  tail,"  at  some  time.  What  I  say  is  that  I  must 
draw  the  line  at  this  case,  because  on  the  facts  it  is  quite  different,  or 
materially  different,  from  Marshall  v.  Green,  1  C.  P.  D.  35,  and  I 
leave  that  case  as  it  stands  on  its  own  footing,  and  must  hold  that 
this  case  comes  within  the  4th  section.^ 


LONG  V.    WHITE. 
Ohio  Supreme  Court,  January  Term,  1884. 

[Reported  in  42  Ohio  State,  59.] 

Bt  the  Court.  In  the  Court  of  Common  Pleas  it  was  averred  that, 
in  March,  1878,  White  entered  into  a  verbal  agreement  with  Benjamin 
Long  to  sell  and  deliver  to  him  a  dwelling-house,  then  standing 
upon  the  premises  of  White,  situate  in  Middlefield,  Geauga  County, 
Ohio ;  White  agreed  to  deliver,  standing  upon  blocks  in  his  3"ard,  on 
or  before  the  6th  day  of  October  then  next;  Long  agreed  to  receive 
the  same  and  to  pay  therefor  $175  in  cash,  or  apply  the  same  on  a 
certain  note  then  held  by  Long  against  White.  On  or  before  the  day 
agreed  upon,  White  did  deliver  the  house  on  blocks  in  his  yard,  and 
in  all  respects  performed  the  conditions  of  the  agreement ;  in  Ma}', 
1878,  Long  died  ;  the  claim,  duly  verified,  was  presented  to  the  execu- 
tor and  was  rejected  ;  White  requested  the  executor  to  indorse  the 
$175  on  the  note  and  the  request  was  refused,  and  judgment  was 
asked.  In  a  second  cause  of  action  the  same  facts  were  averred  and 
Si 75  damages  claimed. 

The  executor  answered  that  the  contract  was  verbal,  and  that  when 
made,  the  dwelling-house  was  standing  upon  the  premises,  erected 
upon  permanent  walls,  and  rested  thereon,  upon  a  solid  and  strong 
foundation,  and  was  permanently  affixed  to  the  premises,  and  consti- 
tuted a  part  of  the  realty,  tenements,  and  appurtenances  of  said  prem- 

^  Meyers  v.  Schemp,  67  111.  469,  ace.     Compare  Keyser  v.  District,  85  N.  H.  477. 


,t^ 


542  JOHNSON   V.   DODGE.  [CHAP.  IV. 

ises,  and  no  part  of  the  agreement  was  in  writing  and  signed  by  either 
party. 

To  this  answer  White  demurred,  and  the  court  sustained  the  de- 
murrer ;  to  which  ruling  the  executor  excepted.  On  error  the  district 
court  sustained  said  ruUng ;  and  the  case  is  heie,  asliing  to  reverse  the 
judgment  of  the  district  court. 

The  only  question  presented  is,  does  the  Statute  of  Frauds  prevent 
recovery  ? 

In  applying  the  Statute  of  Frauds,  buildings  are  not  classed  with 
forest  trees,  but  with  growing  crops,  nurserj-  trees,  and  fixtures 
attached  to  realty. 

And  buildings  are  realt}'  or  personalty,  according  to  the  intention  of 
the  parties.  And  when  the  parties  in  interest  agree  that  they  may  be 
severed  and  moved  from  the  realt}',  buildings  are  held  and  treated  as 
personalty.  Bostwick  v.  Leach,  3  Day,  476  ;  Hollen  v.  Runder, 
Cromp.  M.  &  R.  266  ;  Curtis  v.  Hoyt,  19  Conn.  154;  Shaw  v.  Carbrey, 
13  Allen,  462;  Hartwell  v.  Kelly,  117  Mass.  235,  237;  Keyser  v. 
District  No.  8,  35  N.  H.  477  ;  Fortraan  v.  Goepper,  14  Ohio  St.  558 ; 
Wagner  v.  C.  &  T.  R.  Co.,  22  Ohio  St.  563,  576. 

Judgment  affirmed} 


\|         WILLIAM  F.  JOHNSON,   Plaintiff  in  Error,  v.  JOHN  C. 
DODGE,  Defendant  in  Error. 

Illinois  Supreme  Court,  June  Term,  1856. 

[Reported  in  17  Illinois,  433.] 

Skinner,  J.  This  jvas  a  bill  in  equit}',  for  specific  performance  of  a 
contract  for  the  sale  of  land. 

The  bill  and  proofs  show  that  one  Iglehart,  a  general  land  agent, 
executed  a  contract  in  writing  in  the  name  of  Dodge,  the  respondent, 
for  the  sale  of  certain  land  belonging  to  Dodge,  to  one  Walters,  and 
received  a  portion  of  the  purchase  money  ;  that  Walters  afterwards 
assigned  the  contract  to  Johnson,  the  complainant ;  a  tender  of  per- 
formance on  the  part  of  Walters,  and  on  the  part  of  Johnson,  and  a 
refusal  of  Dodge  to  perform  the  contract.  The  answer  of  Dodge,  not 
under  oath,  denies  the  contract  and  sets  up  the  Statute  of  Frauds  as  a 
defence,  to  any  contract  to  be  proved.  The  evidence,  to  our  minds, 
establishes  a  parol  authority  from  Dodge  to  Iglehart  to  sell  the  land, 
substantiall}'  according  to  the  terms  of  the  writing.  It  is  urged  against 
the  relief  prayed,  that  Iglehart,  upon  a  parol  authorit}'  to  sell,  c(nild 
not  make  for  Dodge  a  binding  contract  of  sale,  under  the  Statute  of 
Frauds ;  that  the  proofs  do  not  show  an  authority  to  Iglehart  to  sign 

1  Scoggin  V.  Slater,  22  Ala.  687  ;  Harris  v.  Power.-*,  57  Ala.  139,  ace.  See  also 
Rogers  v.  Cox,  96  Ind.  1.57  ;  Whetmore  v.  Rbett,  12  Rich.  565  ;  Brown  v.  Rolaud,  11 
Tex.  Civ.  App.  648.     Compare  Fenlason  v.  Rackliff,  50  Me.  362. 


SECT.   I.]  JOHNSON   V.   DODGE.  543 

the  name  of  Dodge  to  the  contract,  and  therefore  that  the  writing  i3 
not  the  contract  of  Dodge  ;  that  the  writing  not  being  signed  bj  the 
vendee  is  void  for  want  of  mutuaUty  ;  that  no  sufficient  tender  of  per- 
formance on  the  part  of  complainant  is  proved,  and  that  the  proof 
shows  that  the  authorit}'  conferred  was  not  pursued  by  the  agent. 
_I^uiLy  will  not  decree  specific  performance  of  a  contract  founded  in 
fraud,  but  where  the  contract  is  for  the  sale  of  land,  and  the  proof 
shows  a  fair  transaction  and  the  case  alleged  is  clearly  established,  it 
will  decree  such  performance. 

"In  this  case,  the  contract,  if  Iglehart  had  authorit}'  to  make  it,  is 
the  contract  of  Dodge  and  in  writing  ;  and  it  is  the  settled  construc- 
tion of  the  Statute  of  Frauds,  that  the  authority  to  the  agent  need  not 
be  in  writing,  and  by  this  construction  we  feel  bound.  1  Parsons  on 
Con.  42,  and  cases  cited;  Doty  v.  Wilder,  15  111.  407;  2  Parsons  on 
Con.  292,  293,  and  cases  cited  ;  Saunders'  PI.  and  Ev.  541,  542,  551  ; 
Story  on  Agency,  50  ;  2  Kent's  Com.  614.  Authority  from  Dodge  to 
Iglehart  to  sell  the  land,  included  the  necessar}'  and  usual  means  to 
make  a  binding  contract  in  the  name  of  the  principal.  If  the  authority 
to  sell  may  be  created  b}'  parol,  from  this  authority  ma}'  be  implied 
the  power  to  use  the  ordinary  and  usual  means  of  effecting  a  valid  sale ; 
and  to  make  such  sale  it  was  necessary  to  make  a  writing  evidencing 
the  same.  If  a  part}'  is  present  at  the  execution  of  a  contract  or 
deed,  to  bind  him  as  a  party  to  it,  when  his  signature  is  affixed  b}' 
another,  it  is  necessar}'  that  the  person  so  signing  for  him  should  have 
direct  authority  to  do  the  particular  thing,  and  then  the  signing  is 
deemed  his  personal  act.  Story  on  Agency,  51.  In  such  case  the 
party  acts  without  the  intervention  of  an  agent  and  uses  the  third 
person  only  as-  an  instrument  to  perform  the  mere  act  of  signing. 
This  is  not  such  a  case.  The  agent  was  authorized  to  negotiate  and 
conclude  the  sale,  and  for  that  purpose,  authority  was  implied  to  do 
for  his  principal  what  would  have  been  incumbent  on  the  principal  to 
do  to  accomplish  the  same  thing  in  person.  Hawkins  v.  Chance,  19 
Pick.  502  ;  2  Parsons  on  Con.  291  ;  Story  on  Agency,  chap.  6  ;  Hunt 
V.  Gregg,  8  Blackf.  105;  Lawrence  v.  Taylor,  5  Hill,  107,  15  111.  411  ; 
Vanada  v.  Hopkins,  1  J.  J.  Marsh.  283  ;  Kirby  v.  Grigsby,  9  Leigh, 
387. 

The  mode  here  adopted  was  to  sign  the  name  of  Dodge  "by" 
Iglehart,  "  his  agent,"  and  it  is  the  usual  and  proper  mode  in  carrying 
out  an  authority  to  contract  conferred  on  an  agent.  But  if  the  signing 
the  name  of  the  principal  was  not  authorized  by  the  authority  to  sell, 
yet  the  signature  of  the  agent  is  a  sufficient  signing  under  the  statute. 
'I'he.  language  of  the  statute  is,  "signed  by  the  party  to  be  charged 
therewith,  or  some  other  persons  thereto  by  him  lawfully  authorized." 
If  Iglehart  had  authority  to  sign  Dodge's  name,  then  the  contract  is 
to  be  treated  as  signed  by  Dodge ;  and  if  Iglehart  had  authority 
to  sell,  in  any  view,  his  signature  to  the  contract,  is  a  signing  by 
"some  other  person  thereto  by  him  lawfully  authorized,"  within  the 


J 


544  BATES    V.    BABCOCK.  [CHAP.   IV. 

Statute,  Truman  V.  Loder,  11  Ad.  and  El.  589;  2  Parsons  on  Con. 
291.  It  is  true  that  authorit}'  to  convey  must  be  in  writing  and  by 
deed  ;  for  land  can  only  be  conveyed  by  deed,  and  the  power  must  be 
of  as  liigh  dignity  as  the  act  to  be  performed  under  it.  It  was  not 
necessar}'  to  the  obligation  of  the  contract  that  it  should  have  been 
signed  by  the  vendee.  His  acceptance  and  possession  of  the  contract 
and  payment  of  mone}'  under  it,  are  unequivocal  evidences  of  his  con- 
currence, and  constitute  him  a  party  as  fuUj'  and  irrevocably  as  his 
signing  the  contract  could.  2  Parsons  on  Con.  290 ;  McCrea  v.  Pur- 
mort,  16  Wend.  160 ;  Shirly  v.  Shirly,  7  Blackf  452. 

We  cannot  question  the  sufficiency  of  the  tender  in  equit}',  to  entitle 
the  complainant  to  specific  performance.  Webster  et  al.  v.  French 
et  al,  11  111.  278.  Nor  do  we  find  any  substantial  departure  in  the 
contract  from  the  authority  proved.  While  we  hold  that  the  authority 
to  the  agent  who,  for  his  principal  contracts  for  the  sale  of  land,  need 
not  be  in  writing,  yet  we  should  feel  bound  to  refuse  a  specific  i)erfor- 
mance  of  a  contract  made  with  an  agent  upon  parol  authority,  without 
full  and  satisfactory  proof  of  the  authority,  or  where  it  should  seem  at 
all  doubtful  whether  the  authority  was  not  assumed  and  the  transaction 
fraudulent. 

Decree  [dismissing  the  bill]  reversed  and  cause  remanded. 

Decree  reversed.^ 


FRANK  E.   BATES,    Appellant,    v.    E.    S.   BABCOCK   et  al., 

Respondents. 

California  Supreme  Court,  August  4,  1892. 

[Reported  in  95  California,  479.] 

Harrison,  J.'^  —  The  plaintiff  brought  this  action  against  the  defend- 
ants for  an  accounting  upon  a  partnership  agreement  between  them 
for  the  purchase  and  disposition  of  certain  real  estate  in  San  Diego. 
At  the  trial  of  the  action,  the  plaintiff  offered  himself  as  a  witness,  and 
under  the  objection  of  the  defendants  that  it  was  incompetent  and 
immaterial,  gave  testimony  tending  to  show  that  an  oral  agreement  had 
been  made  between  himself  and   the  defendant  Babcock,   acting  on 

1  Heard  v.  Pilley,  4  Ch.  App.  548;  Rutenberg  ?'.  Main,  47  Cal.  213;  Tibbetts  r. 
West  and  South  Ry.  Co.,  153  111.  147  ;  Rottman  v.  Wasson,  5  Kan.  552  ;  Rose  v.  Hay- 
den,  35  Kan.  106;  Talbot  v.  Bowen,  1  A.  K.  Mar.sh.  436;  Brown  v.  Eaton,  21  Minn. 
409  (chanojed  by  statute,  Coursolle  v.  Woyerhauser,  69  Minn.  328,  332)  ;  Curtis  '•. 
Hlalr,  26  Miss.  309;  Lobdell  v.  Mason,  71  Miss.  937;  Riley  v.  Minor,  29  Mo.  43 'J  ; 
Jackson  v.  Higgins,  70  N.  H.  637  ;  Worrall  v.  Munn,  5  N.  Y.  229 ;  Newton  v.  Brou- 
son,  13  N.  Y.  587  ;  Blass  v.  Terry,  156  N.  Y.  122,  135;  Abbott  v.  Hunt,  129  N.  C. 
403;  Dodge  v.  Hopkins,  14  Wis.  630,  Tufts  v.  Brace,  103  Wis.  341,  344;  Brown  t>. 
Griswold,  109  Wis.  275,  279,  arc. 

In  some  states,  however,  statutes  expressly  require  the  agent's  authority  to  be  iu 
writing.     See  Mecheni  on  Agency,  §  89. 

^  A  portion  of  the  opinion  is  omitted. 


SECT.   I.]  BATES   V.   BABCOCK.  545 

behalf  of  the  defendant  the  Coronado  Beach  Company,  of  which  he  was 
president,  by  which  tliey  were  to  pa}'  off  the  encumbrances  upon 
certain  real  estate,  sell  and  dispose  of  the  same,  and  share  the  profits 
"ind  loss  in  dealing  therein  ;  that  for  that  purpose  he  gave  to  the  de- 
fendants fifteen  thousand  dollars  with  which  to  pay  certain  claims  and 
encumbrances  thereon,  and  that  the  same  was  so  applied  ;  and  that  at 
the  request  of  the  defendant  Babcock,  a  convej-ance  of  the  property' 
was  executed  to  one  Hubbell,  who  was  the  secretary  of  the  defendant 
corporation.  After  this  testiraon}-  had  been  given,  the  defendants 
moved  to  strike  out  all  portions  thereof  "  relating  to  an  agreement  for 
an  alleged  partnership  between  the  plaintiff  and  the  defendants,  or 
either  of  them,  in  the  land  described  in  the  complaint,  or  an}-  part- 
nership between  the  parties,  upon  the  ground  that  the  same  is  incom- 
petent and  immaterial ;  that  a  partnership  of  the  character  alleged  in 
the  complaint  must  be  proved  by  an  instrument  in  writing,  signed  by 
them,  or  one  of  them."  The  court  granted  the  motion,  saying  that 
"the  contract,  as  alleged  in  the  complaint,  and  supported  by  the 
evidence,  is  one  clearly  for  an  interest  in  lands,  and  as  such  is  void 
under  the  Statute  of  Frauds."  Upon  the  submission  of  the  cause,  the 
court,  in  its  decision,  found  that  there  had  been  no  agreement  for  a 
partnership  in  the  land,  and  rendered  judgment  in  favor  of  the  defend- 
ants. From  this  judgment,  and  an  order  denying  his  motion  for  a  new 
trial,  the  plaintiff  has  appealed. 

A  partnership  may  be  formed  for  the  purpose  of  dealing  in  lands,  as 
well  as  for  dealing  in  personal  estate,  or  for  engaging  in  professional, 
or  commercial,  or  manufacturing  occupations.  Like  any  other  con- 
tract of  partnership,  it  is  an  agreement  to  share  in  the  profit  and  loss 
of  certain  business  transactions.  Such  a  partnership  may  be  formed 
for  the  purpose  of  buying  and  selling  land  generally,  or  it  may  be 
limited  to  a  speculation  upon  a  single  venture.  Dudle}'  v.  Littlefield, 
21  Me.  422 ;  Chester  v.  Dickerson,  54  N.  Y.  1,  13  Am.  Rep.  550 ; 
Williams  V.  Gillies,  75  N.  Y.  201. 

Whether  such  a  partnership  can  be  formed,  exce[)t  by  an  agreement 
in  writing,  has  been  the  subject  of  conflicting  decisions.  There  is  a 
dictum  in  Gra}'  v.  Palmer,  9  Cal.  639,  to  the  effect  that  it  must  be  in 
writing,  for  which  Story  on  Partnership,  section  83,  is  cited  as  au- 
thority ;  and  in  Smith  v.  Burnham,  3  Sum.  458,  it  was  so  held  b}-  that 
distinguished  jurist.^  The  great  weight  of  modern  autliorit}-,  however, 
is  in  support  of  the  rule  that  such  a  partnersliip  may  be  formed  in  the 
same  mode  as  any  other,  and  that  its  existence  may  be  established  by 
the  same  character  of  evidence.  It  was  so  stated  in  Coward  v.  Clanton, 
79  Cal.  23,  where  it  was  held  that  an  agreement  for  the  purchase  of  a 
tract  of  land,  and  its  subdivision  and  sale  in  parcels,  and  for  a  division 
of  the  profits  resulting  therefrom,  in  which  one  party  was  to  furnish 

1  Rowland  v.  Boozer,  10  Ala.   690,  695;   Pecot  r.   Aniieliau,    21  La.  Ami.    667-, 
Bird  V.  Morrison,  12  Wis.    138;  McMillen  r.  Pratt,  89  Wis.   612;  Smith  v.  PatnaW 
107  Wis.  15.5,  162,  ace.    Compare  Watters  v.  McGuigan,  72  Wis.  155. 
VOL.   1. — 35 


546  BATES    V.   BABCOCK.  [CHAP.    IV. 

the  capital  and  take  a  conveyance  of  the  land,  and  the  other  to  furnish 
the  skill  and  labor  in  making  the  sales,  could  not  be  avoided  after  tl»e 
transaction  had  been  completed,  merely  because  it  was  not  in  writin<2;. 
More  tlian  a  hundred  years  ago  it  was  held  by  Lord  Thurlow,  in  Elliot 
V.  Brown,  reported  in  3  8wanst.  489,  1  Vern.  217,  that  the  riglit  of 
survivorship  in  a  joint  demise  of  a  farm  was  destro3-ed  by  reason  of  tlu; 
tenants  having  farmed  the  land  upon  joint  account,  and  thus  by  their 
acts  made  it  partnership  assets.  The  question  was  very  fully  considei-ed 
by  Vice-Chancellor  Wigram  in  Dale  v.  Hamilton,  5  Hare,  369,  wherein 
previous  decisions  involving  similar  principles  were  reviewed,  and  it 
was  held  that  under  the  principles  of  those  decisions  the  existence  of 
such  a  partnership  could  be  shown  by  general  evidence,  without  the 
necessity  of  a  written  agreement.  In  that  case  a  parol  agreement 
had  been  entered  into,  under  which  a  tract  of  land  was  to  be  purchased 
in  the  name  of  one  McAdam,  and  laid  out  in  lots,  and  resold,  he  furnish- 
ing the  capital  and  the  plaintiff  the  skill  and  labor  necessary  therefor, 
and  the  profits  resulting  from  the  venture  were  to  be  divided  between 
them.  The  purchase  was  accordingl}'  effected  in  the  name  of  IMcAdam, 
but  the  defendants  who  had  succeeded  to  McAdam,  with  notice  of  the 
agreement,  afterwards  refused  to  carr}'  it  out.  Thereupon  the  plaintiff 
filed  his  bill  for  an  accounting  and  a  sale  of  the  land  under  the  direction 
of  ihe  court,  with  a  division  of  the  proceeds  in  accordance  with  the 
terms  of  the  agreement.  The  defendants  resisted  the  suit,  upon  the 
ground  that  the  agreement  was  within  the  Statute  of  Frauds,  and  could 
'  be  established  only  b}'  an  instrument  in  writing  ;  but  the  vice-chancellor 
overruled  their  objections  and  upheld  the  bill.  In  his  opinion  (p.  383) 
he  uses  the  following  illustration  in  support  of  his  conclusion,  which  is 
peculiarly  appropriate  to  the  present  case  :  "In  order  to  try  this  ques- 
tion in  the  most  simple  manner,  I  will  suppose  the  case  to  be  the  con- 
verse of  what  it  is.  I  will  suppose  that  the  land  purchased,  instead  of 
rising,  had  fallen  in  value,  that  a  loss  had  been  sustained,  and  that 
Hamilton  and  McAdam  were  the  plaintiffs  seeking  to  compel  Dale  to 
contribute  his  proportion  of  the  loss.  If  in  this  case  the  authorities 
would  have  enabled  Hamiliton  and  McAdam,  by  proving  the  partner- 
ship with  Dale,  and  that  the  land  was  part  of  the  partnership  stock  and 
effects,  to  have  compelled  contribution  from  Dale,  the  same  authorities 
will,  upon  like  proof,  support  the  present  suit  upon  the  principle  — 
that  of  mutuality  in  remedies  —  which  enables  a  vendor  to  recover 
the  purchase-money  in  this  court,  though  the  reraed}'  at  law  ma}'  be 
equally  adequate  and  more  approi>riate,"  and  cites  several  authorities 
to  the  effect  that  in  such  a  case  the  defendant  would  have  been  liable 
for  contribution.  The  rule  laid  down  in  Dale  v.  Hamilton,  5  Hare, 
369,  has  since  been  generally  followed,  and  although  there  are  some 
decisions  to  the  contrary,  ma}'  now  be  said  to  be  the  prevailing  rule 
upon  that  subject.^ 

1  Re  Be  Nicols,  [1900]   2  Ch.  410;  McElroy  i>.  Swope,  47   Fed.  Rep.  386;  Von 
Troths  V.  Bamberger,  15  Col.  1 ;  Morrill  v.  Coleliour,  82  111.  618;  Holmea  v.  McCray, 


SECT.  I.]  BATES  V.    BABCOCK.  547 

Irrespective  of  any  decision,  however,  an  agreement  of  this  character 
cannot  be  said  to  contravene  the  provisions  of  the  Statute  of  F'rauds. 
It  does  not  contemplate  any  transfer  of  land  from  one  party  to  ihe 
other,  or  the  creation  of  anj'  interest  or  estate  in  lands.  In  one  sense, 
the  parties  to  such  an  agreement  may  be  said  to  have  an  interest  in 
the  lands  that  are  to  be  purchased  under  the  agreement,  —  that  sense 
in  which  the  beneficiary,  under  a  trust  for  the  sale  of  real  estate,  and 
payment  to  him  of  the  proceeds  of  the  sale,  has  an  interest  in  the  land  ; 
but  it  is  only  a  pecuniary  interest  resulting  from  the  sale  and  a  right  to 
have  the  land  sold,  rather  than  an  interest  in  the  land  itself.  The 
Statute  of  Frauds  does  not  prevent  parol  proof  for  the  purpose  of  show- 
ing an  interest  in  lands,  but  declares  that  an  agreement  by  which  an 
estate  or  interest  in  lands  is  to  be  created  must  be  in  writing.  No 
interest  or  estate  in  the  land  is  created  by  such  an  agreement,  but  hj 
the  subsequent  acts  of  the  parties  under  the  agreement  rights  are  ac- 
quired in  reference  to  the  land  that  may  be  purchased  in  pursuance  of 
the  agreement,  which  a  court  of  equity  will  protect  against  any  attempt 
to  make  the  Statute  of  Frauds  an  instrument  of  fraud.  A  bill  for  the 
conveyance  of  the  lands  could  not  be  maintained  under  such  an  agree- 
ment, but  by  reason  of  the  acts  of  the  parties  thereunder  an  equity 
would  be  raised  in  their  behalf  which  would  be  superior  to  the  legal 
title  held  b}-  him  to  whom  the  land  was  convened,  and  would  control 
that  title  in  subordination  to  this  superior  equit}'. 

It  is  a  familiar  rule  in  equit}",  that  lands  acquired  b}'  a  partnership 
for  partnership  uses  are  partnership  assets,  and  are  ti*eated  in  equit}*  as 
personalt}',  whether  the  partnership  was  formed  by  oral  or  written 
agreement.  The  same  principle  should  apply  when  the  object  of  the 
partnership  is  to  deal  in  lands,  and  the  assets  of  the  partnership  with 
which  the  lands  are  to  be  purchased  are  made  up  of  the  skill  and  mone^* 
which  are  respective!}' contributed  b3-the  partners  as  its  capital.  Upon 
proof  of  the  existence  of  such  a  partnership,  the  rights  and  obligations 
of  the  respective  partners  should  be  determined  upon  the  same  princi- 
ples and  with  the  same  results  as  in  other  partnerships. 

The  settlement  of  partnership  accounts,  and  the  conversion  into 
money  of  the  assets  of  the  partnership,  whether  real  or  personal,  and 
their  division  among  the  partners,  has  always  been  one  of  the  functions 
of  a  court  of  equit\',  and  that  court  never  stops  to  inquire  into  the  source 
of  the  title  of  such  assets,  or  in  whose  name  the}'  are  held.     The  question 

51  lud.  358;  Lewis  u.  Harrison,  81  Ind.  278,  286;  Richards  r.  Grinnell,  63  la.  44; 
Dudley  y.  Littlefield,  21  Me.  418,  423;  Trowbridge  v.  Wetherbee,  11  Allen,  361; 
Wetherbee  v.  Potter,  99  Mass.  354  ;  Carr  v.  Leavitt,  54  Mich.  540 ;  Davis  v.  Gerber, 
69  Mich.  246;  Petrie  v.  Torrent,  88  Mich.  43;  Snyder  r.  Wolford,  33  Minn.  175; 
Newell  V.  Cochran,  41  Minn.  374;  Chester  v.  Dicker.son,  54  N.  Y.  1;  Babcock  v. 
Rea<l,  99  N.  Y.  209  ;  King  v.  Barnes,  109  N.  Y.  267,  285;  Flower  v.  Barnekoff,  20 
Oreg.  132;  Meason  v.  Kaine,  63  Pa.  339;  Benjamin  v.  Zell,  100  Pa.  33;  Everhart's 
App.,  106  Pa.  349  ;  Howell  v.  Kelly,  149  Pa.  473  ;  Bruce  v.  Hastings,  41  Vt.  380,  acr. 
Similarly  a  contract  for  the  sale  of  a  partnership  interest  is  not  within  the  statute 
though  the  partners  own  land.  Vincent  v.  Vieths,  60  Mo.  App.  9.  Compare  Watson 
V.  Spratley,  10  Ex.  222. 


548  BATES    V.    BABCOCK.  [CHAP.    IV. 

lias  frequentl}'  arisen  in  actions  for  the  division  of  tlie  proceeds  after  a 
sale  under  such  an  agreement,  and  it  has  been  invariabl}-  held  that  the 
Statute  of  Frauds  is  no  defence  thereto.  Bruce  v.  Hastings,  41  Vt. 
380,  98  Am.  Dec.  592  ;  Benjamin  v.  Zell,  100  Pa.  33  ;  Trowbridge  v. 
Wetherbee,  11  Allen,  361  ;  Babcock  v.  Read,  99  N.  Y.  609  ;  Coward  v. 
Clanton,  79  Cal.  23  ;  Keed  on  Statute  of  Frauds,  sec.  727.  See  also 
Byers  v.  Locke,  93  Cal.  493.  Under  such  an  agreement,  it  is  in- 
variabl}' held  that  an  action  for  the  division  of  the  profits  can  be  main- 
tained after  they  have  been  received,  whereas,  if  the  agreement  was 
invalid  at  the  outset,  it  could  not  form  the  basis  of  such  an  action.  ]f, 
however,  the  agreement  was  valid  at  its  inception,  it  is  not  rendered 
invalid  by  the  subsequent  act  of  one  of  the  parties,  and  although  it 
cannot  be  changed  into  a  different  agreement,  such  as  an  agreement 
for  the  conveyance  of  the  land,  yet  either  party  has  the  right  to  its 
enforcement  for  the  purpose  of  carrying  out  its  original  purpose,  —  the 
division  of  the  profits  resulting  from  the  speculation.  The  same  prin- 
ciples are  applicable  in  an  action  to  subject  land  which  has  become  a 
portion  of  the  assets  of  such  a  partnership  to  a  sale  under  the  directions 
of  a  court  of  equit}',  with  a  distribution  of  the  proceeds  thereof  accord- 
ing to  the  rights  of  the  individual  partners.  This  was  the  case  pre- 
sented and  maintained  in  Dale  v.  Hamilton,  5  Hare,  369.  The  same 
l)iocedure  was  upheld  in  Richards  v.  Grinnell,  63  Iowa,  44,  50  Am.  Rep. 
727;  Bunnell  v.  Taintor,  4  Conn.  568;  Hunter  v.  Whitehead,  42  Mo. 
524  ;  Bissell  v.  Harrington,  18  Hun,  81  ;  Holmes  v.  McCray,  51  Ind. 
358,  19  Am.  Rep.  735;  Coward  v.  Clanton,  79  Cal.  23.  After  the 
agreement  for  the  purchase  and  sale  has  been  executed  by  making  the 
conveyance  in  accordance  with  such  agreement,  it  cannot  be  objected 
that  such  conveyance  could  not  have  been  compelled  on  account  of  the 
Statute  of  Frauds.  Pico  v.  Cuyas,  47  Cal.  174.  The  Statute  of  Frauds 
has  no  application  to  an  executed  agreement. 

That  the  agreement  between  the  parties,  which  is  averred  in  the 
complaint,  and  the  evidence  given  in  support  thereof,  did  not  con- 
template any  transfer  of  the  land,  or  of  any  interest  therein,  to  the 
defendants,  or  either  of  them,  but  had  for  its  object  only  a  division  of 
the  profits  and  loss  that  would  remain  after  its  sale,  is  shown  by  a  con- 
sideration of  the  averments  of  the  complaint  hereinbefore  presented, 
and  also  by  the  direction  of  Babcock  to  the  plaintiff  while  negotiating 
the  agreement  to  "  sell  it  off  as  soon  as  you  can,  pa}'  up  the  debts,  and 
divide  the  profits."  It  was  not  necessary  for  the  plaintiff,  in  support 
of  these  averments,  to  produce  written  evidence  of  the  agreement,  but 
the  agreement  could  have  been  established  by  his  oral  testimon}' ;  and 
the  court  erred  in  striking  out  the  testimony  that  he  gave  in  support 
of  the  agreement.  The  first  question  to  be  determined  by  the  court 
was,  whether  there  was  a  partnership,  and  that  fact  could  be  shown  by 
general  evidence.  In  Forster  v.  Hale,  5  Ves.  309,  where  the  right  to 
an  interest  in  the  leasehold  of  a  colliery,  claimed  by  virtue  of  a  partner- 
ship with  one  of  the  lessees,  was  involved,  and  it  was  objected  that  by 


SECT.    I.]  DUNPHY   V.    EYAN.  549 

permitting  parol  evidence  to  establish  such  interest,  an  interest  in  real 
estate  or  a  declaration  of  trust  would  be  gained  without  any  writing,  in 
violation  of  the  Statute  of  Frauds,  Lord  Loughborough  said  :  "  That  is 
not  the  question :  it  is  whetiier  there  was  a  partnership  ;  the  subject 
being  an  agreement  for  land,  the  question  is,  whether  there  was  a 
resulting  trust  for  that  partnership  b}'  operation  of  law.  The  question 
of  partnership  must  be  tried  as  a  fact,  and  as  if  there  was  an  issue  upon 
it.  If  by  facts  and  circumstances  it  is  established  as  a  fact  that  these 
persons  were  partners  in  the  colliery  in  which  land  was  necessarj'  to 
carr}-  on  the  trade,  the  lease  goes  as  an  incident.  The  partnership 
being  established  by  evidence  upon  which  a  partnership  may  be  found, 
the  premises  necessary  for  the  purposes  of  that  partnership  are  b}' 
operation  of  law  held  for  the  purposes  of  that  partnership."  Under 
the  same  principles,  if  in  the  present  case  the  court  should  find,  upon 
sufficient  evidence,  that  a  partnership  existed  between  the  parties,  the 
fact  that  they  would  have  an  interest  in  the  land  which  forms  a  portion 
of  the  assets  of  the  partnership  would  result  b^'  operation  of  law  as  an 
incident  to  such  partnership,  but  this  result  would  not  constitute  a 
reason  for  excluding  parol  testimon}'  to  establish  the  existence  of  the 
partnership. 

For  the  error  of  the  court  in  striking  out  the  evidence  of  the  plaintiff, 
the  order  and  judgment  are  reversed,  and  the  court  is  directed  to  grant 
a  new  trial. 

Paterson,  J.,  Sharpstein,  J.,  De  Haven,  J.,  Garoutte,  J.,  and 
McFarland,   J.,  concurred. 

Beatty,  C.  J.,  dissenting.  —  I  dissent.  The  complaint,  in  m}'  opinion, 
shows  no  cause  of  action,  and  the  evidence  offered  and  stricken  out  by 
the  court  was  of  a  parol  contract,  invalid  under  the  Statute  of  Frauds. 


DUNPHY  V.   RYAN. 
Supreme  Court  of  the  United  States,  January  15-25,  1886 

[Reported  in  116  United  States,  491.] 

Error  to  the  Supreme  Court  of  the  Territorj-  of  Montana. 

B}'  the  statute  law  of  Montana,  there  is  but  one  form  of  action  for 
the  enforcements  of  all  private  rights,  legal  or  equitable.  Ryan,  the 
defendant  in  error,  brought  this  action  on  a  note.  The  plaintiff  in  error 
admitted  the  execution,  deliver}",  and  non-payment  of  the  note,  but  set 
up  by  way  of  counterclaim  a  breach  of  the  contract  stated  in  the  opinion 
of  the  court.  The  trial  court  refused  to  allow  testimony  as  to  this  con- 
tract because  it  was  not  in  writing.  On  appeal  to  the  supreme  court 
of  the  Territory  this  judgment  was  affirmed.  B}'  the  present  writ  of 
error  the  defendant  seeks  a  reversal  of  the  judgment  of  affirmance. 


550  DUNPHY   V.  RYAN.  [CHAP.   IV. 

Mr.  M.  F.  Morris,  for  plaintiff  in  error.^ 

Mr.  Edwiji  W.  Toole  and  IMr.  Joseph  K.  Toole,  for  defendant  in 
error. 

Mr.  Justice  Woods  delivered  the  opinion  of  the  court.  After 
stating  the  facts  in  the  language  reported  above,  he  continued  : 

The  defendant  insists  that  the  court  erred  in  refusing  to  allow  him 
to  prove  the  contract  set  up  in  his  answer.  The  statute  law  of  Mon- 
tana ap[)licable  to  the  question  in  hand  is  as  follows :  Chapter  XIII., 
Art.  I.,  of  the  Revised  Statutes  of  Montana  of  1879  provides  as 
follows  : 

"  Section  160.  No  estate  or  interest  in  land,  other  than  for  leases 
for  a  term  not  exceeding  one  j'ear,  or  an}'  trust  or  power  over  or  con- 
cerning lands,  or  in  any  manner  relating  thereto,  shall  hereafter  be 
created,  granted,  assigned,  surrendered,  or  declared,  unless  b}'  act  or 
operation  of  law,  or  by  deed  or  convej'ance  in  writing,  subscribed  b}' 
the  party  creating,  granting,  assigning,  surrendering,  or  declaring  the 
same,  or  by  his  lawful  agent  thereunto  authorized  by  writing." 

"  Section  162.  Every  contract  for  the  leasing  for  a  longer  time  than 
one  year,  or  for  the  sale  of  any  lands  or  interest  in  lands,  shall  be 
void,  unless  the  contract,  or  some  note  or  memorandum  thereof  ex- 
pressing the  consideration,  be  in  writing  and  be  subscribed  bj'  the 
part}'  by  whom  the  lease  or  sale  is  to  be  made." 

The  denial  in  the  replication  of  the  plaintiff  of  the  making  of  the 
contract  on  which  the  defendant  based  his  cross-action  is  as  effective 
for  letting  in  the  defence  of  the  Statute  of  Frauds  as  if  the  statute  had 
been  specifically  pleaded.  Ma}'  v.  Sloan,  101  U.  S.  231  ;  Buttimere 
V.  Hayes,  5  M.  &  W.  456  ;  Kay  v.  Curd,  6  B.  Mon.  100.  The  question 
is,  therefore,  fairly  presented,  whether  the  contract  alleged  in  the 
answer  of  the  defendant,  not  being  in  writing,  is  valid  and  binding 
under  the  statutes  of  Montana. 

We  cannot  doubt  that  the  contract  which  the  defendant  seeks  to 
enforce  is  a  contract  for  the  sale  of  lands.  According  to  the  averments 
of  the  answer  it  was  this  :  The  plaintiff,  being  in  treaty  for  the  pur- 
chase of  the  lands,  agreed  with  the  defendant  to  acquire  title  to  the 
undivided  two-thirds  thereof  in  his  own  name  upon  the  best  terms 
possible,  and,  when  he  had  acquired  the  title,  to  convey  to  the  plain- 
tiff, by  a  good  and  sufficient  deed,  an  undivided  third  of  the  premises, 
for  which  the  plaintiff  promised  to  pay  the  defendant  one-third  of  the 
purchase-money,  and  one-half  the  expenses  incurred  in  obtaining  the 
title.  This  is  simply  an  agreement  of  the  defendant  to  convey  to  the 
plaintiff  a  tract  of  land  for  a  certain  consideration.  It,  therefore,  falls 
precisely  within  the  terms  of  section  162,  above  quoted.  It  is  a  con- 
tract for  the  sale  of  lands,  and,  not  being  in  writing  signed  by  tlie 
vendor,  is  void.  The  circumstance  that  the  defendant,  not  owning 
the  land  which  he  agreed  to  convey,  undertook  to  acquire  the  title, 
instead  of  taking  the  case  out  of  the  statute,  brings  it  more  clearly  and 

^  The  statement  of  the  case  has  been  abbreviated. 


SECT.   I.]  DUNPHY   V.    RYAN.  551 

unequivocally  within  its  terms.  A  contract  void  bj'  the  statute  cannot 
be  enforced  directlj'  or  collaterally.  It  confers  no  right  and  creates  no 
obligation  as  between  the  parties  to  it.  Carrington  v.  Roots,  2  M,  & 
W.  248  ;  Dung  v.  Parker,  52  N.  Y.  494.  The  defendant  must,  there- 
fore, fail  in  his  cross-action,  unless  he  can  take  his  case  out  of  the 
operation  of  the  Statute  of  Frauds. 

Tlie  defendant  seeks  to  evade  the  effect  of  the  statute  by  the  argu- 
ment that  in  the  transaction  set  out  in  his  answer  he  was  acting  as 
the  agent  of  the  plaintiff  as  well  as  for  himself,  and  that,  having  as 
such  agent  paid  for  the  share  of  the  land  which  he  had  agreed  to  con- 
vey to  the  plaintiff,  he  is  entitled  to  recover  back  the  price,  as  for 
money  paid  out  and  expended  for  the  plaintiff  at  his  request. 

It  is  well  settled  that  when  one  person  pajs  money  or  performs 
services  for  another  upon  a  contract  void  under  the  Statute  of  Frauds, 
he  may  recover  the  monej*  upon  a  count  for  money  paid  to  the  use  of 
defendant  at  his  request,  or  recover  for  the  services  upon  the  quantum 
meruit  count.  "Wetherbee  v.  Potter,  99  Mass.  354  ;  Gray  v.  Hill,  R. 
&  M.,  420;  Shute  v.  Dow,  5  Wend.  204  ;  -Ray  v.  Young,  13  Texas, 
550.  But  in  such  cases  the  suit  should  be  brought  upon  the  implied 
promise.  Buttimere  v.  Hajes,  5  M.  &  W.  456;  Griffith  v.  Young,  12 
East,  513;  Kidder  v.  Hunt,  1  Pick.  328.  Clearlj'  the  present  case 
does  not  belong  to  that  class.  Here  the  suit  is  based  upon,  and  its 
purpose  is  to  enforce  the  void  contract. 

The  cause  of  action  set  up  in  the  defendant's  answer  is  that  the 
plaintiff,  having  contracted  to  purchase  the  land  and  receive  a  con- 
veyance therefore,  became  liable,  upon  a  tender  to  and  refusal  by  him 
of  the  deed,  to  pa}'  the  agreed  price.  This  is  a  suit  upon  the  express 
contract.  There  is  no  implied  contract  on  which  the  cross-action  can 
rest,  for  the  law  implies  a  contract  onl}'  to  do  that  which  the  part}'  is 
legalh'  bound  to  perform.  As  the  express  contract  set  up  by  the 
defendant  was  void  under  the  statute,  the  plaintiff  was  not  bound  in 
law  to  accept  the  deed  tendered  him  by  the  defendant  or  pay  the  pur- 
chase money.  The  defendant  paid  no  money  to  or  for  the  plaintiff. 
Tlie  raone}'  paid  out  by  him  was  to  enable  him  to  perform  his  contract 
with  the  plaintiff.  He  paid  it  out  for  himself  and  for  his  own  advan- 
tage. The  plaintiff  has  received  neither  the  money  nor  the  land  from 
the  defendant.  Neither  reason  nor  justice  dictate  that  he  should  pay 
the  defendant  the  price  of  the  land,  and  therefore  the  law  implies  no 
provision  to  do  so.  2  1>1.  Com.  443  ;  Ogden  v.  Sanders,  12  Wheat. 
213,  341.  The  cross-action  cannot,  therefore,  be  sustained  on  au}* 
supposed  implied  promise  of  the  plaintiff. 

But  the  defendant's  counsel  further  insist  that  there  has  been  such 
a  part  performance  of  the  contract  as  entitles  the  defendant  to  equitable 
relief,  on  the  ground  that  it  would  be  a  fraud  on  him  not  to  enforce 
the  contract. 

The  case,  as  stated  in  the  defendant's  answer,  is  not,  either  in  the 
averments  or  prayer,  one  for  equitable  relief.     There  is  no  averment, 


552  DUNPHY   V     RYAN.  [CHAP.    IV. 

and  no  proof  was  offered,  that  the  refusal  of  the  plaintiff  to  accept  the 
deed  and  pay  the  purchase  price  of  the  land  has  subjected  the  defendant 
to  an}'  loss.  His  answer  avers  that  before  he  made  his  contract  with 
the  plaintiff  he  was  negotiating  with  the  owner  for  the  purchase  of  the 
land.  It  is  not  alleged  that  he  would  not  have  purchased  the  land  if 
he  had  not  made  his  contract  with  tlie  plaintiff.  There  is  no  aver- 
ment that  the  land  is  not  wortli.  or  that  it  cannot  be  sold  for,  all  it 
cost  him.  As  between  these  parties  there  has  been  no  payment,  no 
possession,  and  no  improvements.  The  onh*  complaint  of  misconduct 
on  the  part  of  the  plaintiff  which  can  be  inferred  from  the  pleadings 
is  his  refusal  to  perform  a  verbal  contract  for  the  purchase  of  lands. 
But  the  mere  breach  of  a  verbal  promise  for  the  purchase  of  lands  will 
not  justify  the  interference  of  a  court  of  equity.  Purcell  v.  Miner, 
4  AVall.  513.  There  is  no  fraud  in  such  a  refusal.  The  party  who  so 
refuses  stands  upon  the  law  and  has  a  right  to  refuse.  Under  the  cir- 
cumstances of  this  case  the  statute  is  as  binding  on  a  court  of  equit}' 
as  on  a  court  of  law.  If  the  mere  refusal  of  a  party  to  perform  a  parol 
contract  for  the  sale  of  lands  could  be  construed  to  be  such  a  fraud  as 
would  give  a  court  of  equity  jurisdiction  to  enforce  it,  the  Statute  of 
Frauds  would  be  rendered  vain  and  nugator}'.  The  defendant  knew  or 
ought  to  have  known  that  the  statute  requires  such  a  contract  as  the 
one  he  seeks  to  enforce  to  be  evidenced  by  writing.  That  he  did  not 
exact  a  contract  in  writing  is  his  own  fault.  Courts  of  equity  are  not 
established  to  relieve  parties  from  the  consequences  of  their  own 
negligence  or  folly. 

The  Statute  of  Frauds  is  founded  in  wisdom  and  has  been  justified 
by  long  experience.  As  was  said  by  Mr.  Justice  Grier,  in  Purcell  v. 
Miner,  tcbi  supra,  the  statute  "  is  absolutely  necessary  to  preserve  the 
title  to  real  property  from  the  chances,  the  uncertainty,  and  the  fraud 
attending  the  admission  of  parol  testimon}'."  It  should  be  enforced. 
Courts  of  equit)',  to  prevent  the  statute  from  becoming  an  instrument 
of  fraud,  have  in  man}'  instances  relaxed  its  provisions.  But  this  case 
is  barren  of  any  averment  or  proof,  or  offer  of  proof,  which  ought  to 
induce  a  court  of  equit}'  to  afford  relief.  It  follows  that  neither  in  a 
court  of  law  nor  a  court  of  equity  can  the  defendant  maintain  his  suit 
on  the  cause  of  action  set  up  in  his  answer  by  way  of  counter-claim  or 
cross-action. 

Judgment  affirmed} 

1  See  further  Robbins  v.  Kimball,  55  Ark.  416;  Erben  v.  Lorillard,  19  N.  Y.  299; 
Levy  V.  Brush,  45  N.  Y.  589  ;  Harrison  v.  Bailey,  14  S.  C.  234 ;  Henderson  i;.  Hudson, 
1  Mun.  510;  Walker  v.  Herring,  21  Gratt.  680. 


SECT.    I.]  PARSONS    V.    PHELAN.  553 

EDWARD   p.    PARSONS    v.   JAMES   PHELAN. 

Supreme  Judicial  Court  of  Massachusetts,  November  9,    1882- 

January  9,   1883. 

[Reported  in  134  Massachusetts,  109.] 

Morton,  C.  J.  By  the  Statute  of  Frauds,  no  action  can  be  brought 
upon  a  contract  for  the  sale  of  lands,  or  of  any  interest  in  or  concern- 
ing lands,  unless  the  contract,  or  some  memorandum  thereof,  is  in 
writing.  Gen.  Sts.  c.  105,  §  1.  And  no  trust  concerning  lands,  except 
such  as  may  arise  or  result  by  implication  of  law,  can  be  created  or 
declared,  unless  by  an  instrument  in  writing.     Gen.  Sts.  c.  100,  §  19. 

In  the  case  before  us,  the  evidence  tended  to  show  that,  in  1880, 
a  parcel  of  land  in  Lynn  was  about  to  be  sold  by  auction  ;  and  that 
the  plaintiff  and  the  defendant  made  an  oral  contract  that  the  defendant 
should  bid  off  and  buy  the  estate  upon  the  joint  account  of  both  parties, 
in  equal  shares. 

It  is  clear  upon  the  authorities  that  such  a  contract  is  within  the 
statutes  above  cited  ;  and  that  the  plaintiff  cannot  enforce  a  trust  in 
his  favor  in  the  land  after  it  was  conveyed  to  the  defendant,  or  main- 
tain an  action  at  law  for  a  breach  of  the  contract.  Fickett  v.  Durham, 
109  Mass.  419;  Wetherbee  i-.  Potter,  99  Mass.  354;  Smith  v.  Burn- 
ham,  3  Sumner,  435.  This  is  the  contract  set  out  in  the  first  count 
of  the  plaintiff's  declaration,  upon  which  the  Superior  Court  properly 
ruled  that  he  could  not  recover. 

But  the  plaintiff  contends  that  he  is  entitled  to  recover  under  his 
third  count,  which  alleges  that  the  defendant  agreed  that  he  would  bid 
for  and  buy  one  undivided  half  of  the  land  for  and  in  behalf  of  the 
plaintiff,  and  as  agent  of  the  plaintiff.  Without  discussing  the  ques- 
tion whether  this  count  sets  out  a  contract  which  is  not  within  the 
Statute  of  Frauds,  it  is  enough  for  the  decision  of  this  case  that  there 
was  not  a  scintilla  of  evidence  to  show  any  such  contract.  On  the 
contrary',  the  testimou}'  of  the  plaintiff,  which  was  the  only  evidence  in 
the  case  as  to  the  terms  of  the  contract,  clearly  shows  that  it  was,  as 
set  out  in  the  first  count,  that  the  defendant  should  buy  the  estate  offered 
for  sale  on  joint  account,  and  it  is  susceptible  of  no  other  construction. 

Though  tlie  effect  of  the  contract  which  was  made,  if  it  had  been  in 
writing,  would  be  that  the  plaintiff  would  become  the  equitable  owner 
of  an  undivided  half  of  the  estate,  this  does  not  change  the  contract 
into  a  contract  to  buy  an  undivided  half  as  the  agent  of  the  plaintiff. 
To  declare  upon  the  contract  as  such  creates  a  variance,  and  is  a  mere 
evasion  of  the  statute. 

The  court  shoiiM  have  instructed  the  jury  as  requested,  that  the 
contract  proved  was  within  the  statute,  and  that  the  plaintiff  could  not 
maintain  his  action.  Exceptions  sustained.^ 

1  Wallace  v.  Stevens,  64  Maine,  225  ;  Hollida  v.  Shoop,  4  Md.  465  ;  Green  v.  Drum- 
mond,  31  Md.  71  ;  Bailey  v.  Hemenway,  147  Mass.  326;  Brosnau  v.  McKee,  63  Mich. 
4.J4,  arc.  See  also  McLennan  v.  Boutell,  117  Mich.  544.  Compare  Evans  v.  Green, 
23  Miss.  294. 


554  DOUGHERTY   V.    CATLETT.  [CHAP.    IV. 

JOHN    H.    DOUGHERTY   v.   HERALD   CATLETT. 
Illinois  Supreme  Court,  June  15,  1889, 

[Reported  in  129  Illinois,  431.] 

Mr.  Justice  Bailey  delivered  the  opinion  of  the  Court  : 

The  only  questions  presented  by  this  appeal  are  those  arising  upon 
the  plea  of  the  Statute  of  Frauds.  It  appears  from  the  declaration 
that,  prior  to  the  date  of  the  contract  upon  which  the  suit  is  brought, 
the  plaintiff  and  defendant  entered  into  an  agreement  in  writing,  by 
which  the  defendant,  in  consideration  of  a  certain  sum  of  money  then 
paid  to  him  by  the  plaintiff,  and  of  certain  other  payments  thereafter 
to  be  made,  agreed  to  convey  to  the  plaintiff  certain  lands  in  Vermilion 
County  ;  that  the  plaintiff  thereupon  entered  into  possession  of  said 
lands  ;  that  while  so  in  possession  he  sold  an  undivided  half  of  the 
lands  to  one  McGabe,  the  defendant  conveying  said  undivided  half 
to  McCabe  at  the  plaintiff's  request ;  that  after  such  conveyance  was 
made  and  while  the  plaintiff"  was  still  in  possession  of  the  remaining 
undivided  half,  the  plaintiff  and  defendant  entered  into  a  verbal  agree- 
ment whereby  the  plaintiff  agreed  to  sell  and  surrender  to  the  defend- 
ant said  undivided  half  still  in  his  possession,  the  defendant  agreeing, 
in  consideration  thereof,  to  pay  the  plaintiff  the  sum  of  $3,500;  that 
the  plaintiff  thereupon  surrendered  to  the  defendant  the  possession 
of  said  undivided  half  of  said  premises,  and  that  the  defendant  retained 
the  same  in  his  possession,  and  afterwards  sold  and  convej-ed  it  to 
a  third  person,  with  the  plaintiff's  knowledge,  for  the  sum  of  $4,000. 
The  suit  is  brought  to  recover  of  the  defendant  the  consideration  of 
said  verbal  agreement. 

The  second  section  of  the  Statute  of  Frauds  of  which  the  defendant 
seeks  b}'  his  plea  to  avail  himself  is  as  follows :  "  No  action  shall  be 
brought  to  charge  any  person  upon  an}-  contract  for  the  sale  of  lands, 
tenements,  or  hereditaments,  or  an^'  interest  in  or  concerning  them,  for 
a  longer  term  than  one  year,  unless  such  contract  or  some  memoran- 
dum or  note  thereof  shall  be  in  writing  and  signed  b}-  the  party  to 
be  charged  therewith,  or  some  other  person  thereunto  lawfully  author- 
ized in  writing  signed  by  such  party." 

The  execution  by  the  defendant  to  the  plaintiff  of  the  written  con- 
tractor sale  alleged  in  the  declaration  vested  in  the  plaintiff  an  equitable 
interest  in  the  lands  therein  described,  and  there  can  be  no  doubt  that 
such  interest  was  an  interest  in  or  concerning  lands  within  the  mean- 
ing of  said  statute.  That  the  Statute  of  Frauds  embraces  equitable  as 
well  as  legal  interests  in  land  is  well  settled.  Browne  on  Statute  of 
Frauds,  sec.  229.  As  said  b3'Mr.  Justice  Story  in  Smith  v.  Burnham, 
,3  Sumner,  435,  "A  contract  for  the  conveyance  of  lands  is  a  contract 
respecting  an  interest  in  lands.  It  creates  an  equitable  estate  in  the 
vendee  in  the  very  lands,  and  makes  the  vendor  a  trustee  for  him.     A 


SECT.    I.]  DOUGHERTY   V.    CATLETT.  555 

contract  for  the  sale  of  an  equitable  estate  in  lands,  whether  it  be 
under  a  contract  for  the  conveyance  by  a  third  party,  or  otherwise, 
is  clearh'  a  sale  of  an  interest  in  lands,  within  the  Statute  of  Frauds." 
See  also  Richards  v.  Richards,  9  Gray,  313  ;  Hughes  v.  Moore, 
7  Cranch,  176;  Simms  v.  Killian,  12  Ired.  252;  Dial  v.  Grain,  10 
Texas,  444  ;  Catlett  v.  Dougherty,  21  111.  App.  116  ;  Jevne  v.  Osgood, 
57  111.  340.1 

The  plaintiff  contends  that  the  acts  performed  b}'  him  under  his 
oral  contract  to  sell  and  surrender  his  interest  in  said  lauds  to  the 
defendant  constitute  such  a  performance  as  should  take  the  case  out 
of  the  statute.  The  onl}-  act  of  performance  alleged  in  the  declaration 
is  the  deliver}-  of  possession  of  the  premises  sold  to  the  defendant. 
There  is  no  allegation  of  any  cancellation  or  surrender  of  the  defend- 
ant's contract  to  convey  the  lands  to  the  plaintiff  on  payment  of  the 
purchase  mone}-,  nor  is  the  cancellation  of  said  contract  averred,  either 
directly  or  inferentially.  It  will  therefore  be  presumed  that  said  con- 
tract is  still  held  by  the  plaintiff  as  a  valid  and  subsisting  legal  obligation 
against  the  defendant.  The  averments  of  the  declaration,  therefore,  as 
we  interpret  them,  show  a  partial  and  not  a  complete  performance. 

The  doctrine  of  part  performance  is  a  doctrine  of  equit}'  and  does 
not  prevail  at  law.  Mr.  Browne,  in  his  Treatise  on  the  Statute  of 
Frauds,  sec.  451,  says  :  "  It  is  settled  by  a  long  series  of  authorities, 
that  a  part  execution  of  a  verbal  contract  within  the  Statute  of  Frauds 
has  no  effect  at  law  to  take  the  case  out  of  its  provisions,"  and  in 
support  of  this  statement  a  large  number  of  cases  are  cited  in  a  note. 
To  same  effect  see  2  Reed  on  the  Statute  of  Frauds,  sec.  548,  and 
authorities  cited  in  note.  The  same  rule  has  been  frequently  an- 
nounced by  this  court.  Warner  v.  Hale,  65  111.  395  ;  Wheeler  v. 
Frankenthal,  78  id.   124;  Creighton  v.   Sanders,  89  id.   543. 

The  plaintiff's  contention  is,  that  the  facts  averred  in  the  declaration 
amount  to  a  rescission  of  the  defendant's  contract  to  conve}',  and  that 
such  rescission,  coupled  with  a  delivery  of  possession,  should  be  held  to 
be  tantamount  to  a  complete  performance.  The  difHculty  with  this  view 
is  that  no  rescission  is  averred,  either  directly  or  inferentially.  The 
only  averment  is  that  the  plaiutitf  had  surrendered  the  possession  to 
the  defendant  who  ahead}'  had  the  legal  title,  and  that  the  defendant 
subsequently  conveyed  the  land,  with  the  plaintiff's  knowledge,  to  a 
third  person.  A  surrender  of  possession  did  not  necessarily  involve 
a  rescission  of  the  defendant's  contract,  since  such  surrender  of 
possession  may  be  entirely  consistent  with  an  intcMition  on  his  part 
to  retain  the  defendant's  contract  with  a  view  of  subsequently  enforcing 
it  against  him.  The  pleading  must  be  construed  most  strongly  against 
the  pleader,  and  as  the  declaration  contains  no  averment  of  a  rescission 
or  of  any  facts  from  which  a  rescission  must  be  necessarily  implied,  it 
must  be  presumed  that  none  was  made  or  intended.  If  the  plaintiff 
relied  on  the  theory  of  a  rescission  he  should  have  averred  it,  and  not 

1  See  further,  Browne  on  Statute  of  Frauds,  §  229. 


556  Mcknight  v.  bell.  [chap.  iv. 

having  done  so,  he  cannot  recover  upon  a  theory  not  supported  b}'  his 
declaration.^ 

We  are  unable  to  see  that  any  special  force  is  to  be  given,  in  this 
connection,  to  the  averment  that  the  defendant  had  conveyed  the  land 
to  a  third  person  with  the  plaintiff's  knowledge.  It  might  perhaps 
have  been  ditferent  if  such  conveyance  had  been  made  with  the  plaintiff's 
consent  and  approbation.  The  legal  effect  of  the  conveyance,  so  long 
as  it  does  not  appear  to  have  been  made  with  the  plaintiff's  consent,  is 
merel}'  to  place  it  out  of  the  defendant's  power  to  perform  his  contract 
to  convey  the  land  to  the  plaintiff,  but  it  has  no  tendency  to  work  a 
rescission  or  cancellation  of  the  contract,  or  to  absolve  the  defendant 
from  his  liability  thereon,  and  this  is  in  no  way  affected  by  the  mere 
knowledge  of  the  plaintiff  that  the  conveyance  was  being  made.  We 
are  of  the  opinion  that  the  demurrer  to  the  defendant's  plea  was 
properl}'  overruled.  The  judgment  of  the  Appellate  Court  will  there- 
fore be  affirmed. 

Judgment  affirmed. 

Mr.  Justice  Wilkin  took  no  part. 


V  j  ROBERT  Mcknight  v.  edward  bell. 

Pennsylvania  Supreme  Court,  April  2 4-M at  26,  1890. 

[^Reported  in  135  Pennsylvania,  358.] 

Mr.  Justice  Clark. '^  It  is  admitted  that  Robert  McKnight,  Sr., 
Jn  the  year  1860,  died  seised  inter  alia  oi  174  acres  of  land  in  Antis 
township,  Blair  Coimt}-,  which  embraced  the  lands  in  dispute,  and  tliat 
by  his  last  will  and  testament,  admitted  to  probate  8th  January,  1861, 
be  devised  the  same  in  fee  to  his  six  sons,  John,  William,  Blair,  Robert, 
Wilson,  and  Reuben,  eqnall}-  and  in  common.  On  the  16th  March, 
1875,  when  the  youngest  son  came  of  age,  an  amicable  partition  of  the 
testator's  lands  was  made  among  them  in  writing,  by  the  terms  of 
which  Blair,  William,  and  Robert  took  as  their  share  of  the  estate  the 
174  acres  of  land  alread}'  mentioned,  agreeing  to  pay,  in  the  nature  of 
owelty,  to  their  brothers  Wilson  and  Reuben,  each  the  sum  $750,  and 
to  John  $100;  the  widow's  dower  in  the  entire  estate,  adjusted  at 
$420  annually,  to  remain  a  charge,  payable  in  equal  parts  by  all  the 
heirs.     On  the    23d   March,    1875,    Blair,   William,    and    Robert,   by 

1  The  Court  of  Appeals,  21  111.  App.  116,  119,  held  the  contract  unenforceable 
"  whether  the  transaction  be  regarded  as  a  sale  or  an  attempt  by  parol  to  rescind  the 
written  contract  by  which  appellee  became  vested  w^ith  such  equita1>le  interest,  for  both 
would  be  within  the  statute,  and  require  evidence  in  writinj^  to  sustain  them  ; "  citing 
as  to  rescission  Reed  on  Statute  of  Frauds,  II.  sec.  456 ;  Dial  v.  Grain,  10  Tex.  444. 
See  furtlier  Browne  on  Statute  of  Frauds,  §§  431-436. 

*  A  portion  of  the  opinion  is  omitted. 


SECT.  I.]  Mcknight  v.  bell.  557 

agreement  in  writing,  subdivided  their  purpart,  Blair  taking  as  his 
share  all  that  portion  of  their  land  lying  east  of  the  old  township  road, 
containing  96  acres  149  perches,  upon  which  were  the  buildings,  and 
William  and  Robert  taking  the  balance  of  the  tract,  lying  west  of  the 
township  road,  containing  78  acres  148  perches  ;  Blair  assuming  pa}-- 
ment  of  the  SI, 500  to  Reuben  and  William,  and  of  the  6100  to  John, 
and  agreeing,  besides,  to  give  to  William  and  Robert  $1,000  worth  of 
the  timber  land  off  his  tract,  according  to  the  adjustment  of  tliree  of 
their  neighbors  named.  An  old  lane,  running  in  a  westerly  direction 
from  the  township  road,  divided  the  purpart  of  William  and  Robert  into 
two  nearly  equal  parts.  The  39  acre  piece,  lying  north  of  the  lane,  was 
subsequentlv  taken  in  execution  at  the  suit  of  Mar}-  McKnight,  by  the 
sheriff  of  Blair  County,  as  the  property  of  William  McKnight,  and  at 
the  June  Term,  1884,  was  sold,  and  a  sheriff's  deed  dated  20th  June, 
1884,  was  executed  and  delivered  to  A.  L.  McCartney,  who  on  the 
15th  June,  1885,  conveyed  to  Edward  Bell  the  defendant.  The 
plaintiff,  Robert  McKnight,  conceding  Bell's  right  to  the  undivided 
one  half  of  the  land,  in  the  right  of  his  brother  William,  claims  to 
recover  the  other  half. 

The  defendant's  contention,  however,  is  that  Robert  and  William 
McKnight,  who  it  is  conceded  were  originally  tenants  in  common  of 
the  78  acres,  long  prior  to  the  sheriff's  lev^'  and  sale,  had  executed  a 
parol  partition  thereof  between  them,  bj'  the  terms  of  which  Robert 
became  entitled,  in  severaltj-  and  in  fee,  to  the  39  acres  south,  and 
William  to  the  39  acres  north  of  the  lane,  the  latter  being  the  premises 
in  dispute.  Whether  any  such  parol  partition  was  in  fact  executed  as 
alleged,  is  therefore  the  principal  question  in  the  cause ;  for,  if  there 
was  such  a  partition,  the  plaintiff  has  no  right  of  recovery  in  this  case. 
Upon  a  full  hearing  of  all  the  evidence  on  both  sides,  the  learned 
judge  of  the  court  below  gave  binding  instructions  to  find  for  the 
plaintiff,  and  this  is  the  first  error  assigned. 

It  is  now  well  settled,  notwithstanding  what  was  said  in  Gratz  v. 
Gratz,  4  R.  410,  that  a  parol  partition  of  lands  between  tenants  in 
common  is  not  a  sale  or  transfer  of  lands,  within  the  Statute  of  Frauds. 
If  tenants  in  common,  intending  to  make  a  partition  of  their  lands, 
run  a  line,  which  is  marked  on  the  ground  as  a  division  line,  and 
actually  take  possession  of  their  respective  parts  in  pursuance  thereof, 
and  the  partition  is  fully  executed  between  them,  it  is  sufficient  to  vest 
the  title  in  severalt}-.  In  Rider  v.  Maul,  46  Pa.  376,  the  question  was 
upon  the  effect  of  an  alleged  parol  partition  between  ^Martin  Jacobs 
and  John  Rider.  At  the  trial  of  that  case  below,  the  court  was  re- 
quested, in  the  defendant's  first  point,  to  charge  the  jur}',  in  substance 
that,  if  they  believed  that  the  parties  had  run  a  line,  which  was  marked 
on  the  ground  as  a  division  line,  and  had  taken  possession  of  their 
respective  parts  in  pursuance  of  such  division,  the  partition  was  ex- 
ecuted. The  learned  judge  refused  so  to  charge,  saying  that  the 
evidence  of  a  parol  partition  or  division  was  not  sufficient  to  take  the 


558  Mcknight  v.  bell.  [chap.  iv. 

case  out  of  the  Statute  of  Frauds  and  Perjuries,  and,  further,  that 
the  jurj'  should  disregard  it  altogether,  and  treat  Jacobs  and  Rider  as 
tenants  in  common.  When  the  case  came  into  this  court  the  judgment 
was  reversed.  Mr.  Justice  Thompson,  in  delivering  the  opinion  of 
the  court,  said:  "  We  are  of  opinion  that  the  defendant's  first  point 
should  have  been  answered  in  the  affirmative.  It  was  undoubtcdlj-  a 
correct  presentation  of  the  law,  as  a  general  proposition  :  Ebert  v. 
Wood,  1  Binn.  216  ;  Pugh  v.  Good,  3  W.  &  S.  66  ;  Calhoun  v.  Hays, 
8  W.  &  S.  127  ;  and  McMahan  v.  McMahan,  1  Har.  376  ;  and  there 
was  testimou}'  of  which  it  was  predicated,  which,  if  true,  (and  this  was 
for  the  jur}',)  was  sufficient  to  establish  an  executed  parol  division  of 
the  land."  When  the  case  came  up  the  second  time,  70  Pa.  15,  there 
was,  it  is  true,  an  intimation  that,  if  tlie  question  was  res  7iova,  per- 
haps the  court  would  take  a  different  view,  but  the  former  ruling  was 
permitted  to  stand.  But  whatever  doubt  ma}'  have  arisen,  from  what 
was  said  in  the  cases  cited,  was  dispelled  bj'  the  decision  of  this  court 
in  the  verj-  recent  case  of  Mellon  v.  Reed,  114  Pa.  649,  where  we  said, 
in  the  most  explicit  manner,  that  "a  partition  which  merely  severs  the 
relation  existing  between  tenants  in  common  in  the  undivided  whole, 
and  vests  title  to  a  correspondent  part  in  severalt}",  is  not  such  a  sale 
or  transfer  of  title  as  will  be  affected  by  the  Statute  of  Frauds."  The 
reason  of  this  rule  rests  in  this  :  that  the  partition  is  not  an  acquisition 
or  purchase  of  land,  nor  is  it  in  anj'  proper  sense  a  transfer  of  the 
title  to  land  ;  it  is  a  mere  setting  apart  in  severalt}'  of  the  same  interest 
held  in  common,  not  in  other,  but  in  the  same  lands.  A  parol  parti- 
tion, when  fair  and  equal,  and  followed  by  due  execution,  has  been 
held  to  bind  even  infants  and  femes  covert  ;  and  a  judgment  or  a 
mortgage  or  the  lien  of  a  legacy  against  one  of  the  tenants  in 
common  will,  after  the  partition,  ipso  facto  cease  to  bind  the  whole  as 
an  entirety,  and  attach  to  his  purpart :  Williard  v.  AVilliard,  56  Pa. 
119;  Darlington's  Appropriation,  13  Pa.  430;  Bavington  v.  Clarke, 
2  P.  &  W.  115  ;  McLanahan  v.  Wyant,  2  P.  &  W.  279  ;  Long's  App., 
77  Pa.  151.  The  result  of  such  a  partition  does  not  confer  a  merely 
equitable  right,  but  a  right  recognized  and  which  will  be  enforced  at 
law.  Ejectment  would  not  lie  to  compel  payment  of  a  sum  stipulated 
in  the  nature  of  oweltv  ;  nor,  in  the  absence  of  a  contract  to  that  effect, 
would  a  bill  lie  to  enforce  a  conveyance  :  if  the  parties  do  not  consum- 
mate the  transaction  by  writing,  it  is  because  they  chose  to  do  other- 
wise. 

It  follows  that  the  question  whether  or  not  a  parol  partition  was 
actually  made  and  executed,  between  Robert  and  William  McKnight, 
was  a  question  of  fact  to  be  determined  by  the  jur}',  as  other  questions 
of  fact  are  determinable  at  law  b}-  that  tribunal.  There  is  in  all  cases, 
at  law,  a  prelirainarv  question  for  the  court,  whether  there  is  any 
evidence  of  the  fact  sought  to  be  established  that  ought  reasonabl}'  to 
satisfy  the  jury  ;  if  there  is  evidence  from  which  the  jury  can  properly 
fiad  the  question  for  the  party  on  whom  rests  the  burden  of  proof,  it 


SECT.   I.]  CAVANAUGH   V.   JACKSON.  659 

should  be  submitted ;  if  not,  it  should  be  withheld  from  the  jury : 
Hyatt  V.  Johnston,  91  Pa.  196;  Pattersons.  Dushane,  115  Pa.  334  ; 
Cover  V.  Manaway,   115  Pa.   338. 

As  the  case  was  given  to  the  jur^*  with  binding  instructions  to  find 
for  the  plaintiff,  the  defendant  is  entitled  to  have  the  testimony  lie 
relies  upon  accepted  as  true,  together  with  all  reasonable  inferences 
tlierefrom.  Referring  to  the  testimony,  we  are  of  opinion  the  case 
should  have  been  submitted  to  the  jurj'.  We  will  not  recite  the 
testiraon}-,  or  discuss  it,  in  detail ;  as  the  case  is  to  be  re-tiied,  it  is 
better  that  we  sliould  not.  A  reference  in  detail  to  the  testimony,  to 
exhibit  the  ground  of  this  opinion,  might  be  taken  at  the  re-trial,  if 
read  in  the  presence  or  hearing  of  the  jury,  as  an  expression  of  our 
views  on  the  questions  of  fact  involved,  and  might  have  a  misleading 
effect.  Tlie  view  we  have  taken,  as  to  the  measure  of  proof  required, 
will  readily  suggest  the  propriet}'  of  a  submission  of  these  questions 
to  the  jur}-. 

The  judgment  is  reversed,  and  a  venire  facias  de  novo  awarded."^ 


JOSEPH    CAVANAUGH,  Respondent,    v.    SAMUEL    JACKSON, 

Appellant. 

California  Supreme  Court,  October,  1891. 

^Reported  in  91  California,  580.] 

Paterson,  J.  The  record  shows  that  in  December,  1880,  and  long 
prior  the^reto,  the  plaintiff  was  in  possession  of  the  Coats  place,  which 
he  now  owns,  and  the  defendant,  Jackson,  was  in  possession  of  an 
adjoining  ranch,  known  as  the  Beaughan  place.  A  dispute  having 
arisen  as  to  the  boundar}-  line  between  the  two  ranches,  a  surve3'or 

1  Long  r.  Dollarhide,  24  Cal.  218;  Tuffree  w.Polhemus,  108  Cal.  670,  677  ;  Tomlin- 
V.  Hilyard,  43  111.  300;  Grimes  v.  Butts,  65  111.  347;  fehepard  v.  Kinks,  78  111.  188; 
Gage'i'.  Bissell,  119  111.  298;  Lacy  v.  Card,  60  111.  App.  72;  Foltz  i-.  Wert,  103  Iiid. 
404;  Moore  i-.  Kerr,  46  Ind.  468;  Bruce  i'.  Osgood,  113  Ind.  360;  Tate  i-.  Foshee,  117 
Ind.  322;  Higginson  f.  Schaneback  (Ky.),  66  S.  W.  Rep.  10-JO;  Johnston  d.  Labat, 
26  La.  Ann.  159;  VVildey  v.  Bonneys,  31  Miss.  644;  Pipes  r.  Buckner,  51  Miss.  848; 
Bompart  v.  Roderman,  24  Mo.  385 ;  Jackson  v.  Harder,  4  Johns.  202  ;  Wood  o.  Fleet, 
36  N.  Y.  499  ;  Piatt  v.  Hubbell,  5  Ohio,  243  ;  Wolf  v.  Wolf,  158  Pa.  281  ;  Rountree  v. 
Lane,  32  S.  C.  160;  Meacham  v.  Meacham,  91  Tenn.  532  ;  Stuart  v.  Baker,  17  Tex. 
417  ;  Smock  v.  Tandy,  28  Tex.  130:  Mitchell  v.  Allen,  69  Tex.  70;  Aycock  v.  Kim- 
brough,  71  Tex.  330;  Mass  r.  Bromberg  (Tex.  Civ.  App),  66  S.  W.  Rep.  468; 
Whitemore  v.  Cope,  11  UtMh.  344;  Brazee  v.  Schofield,  2  Wash.  Ty.  209,  ace.  See 
also  Berry  v.  Seawall,  65  Fed.  Rep.  742  (C.  C.  A.). 

Johnson  v.  Wilson,  Willes.  248 ;  Ireland  v.  Rittle,  1  Atk.  541  ;  Whaley  r.  Dawson, 
2  Sch.  &  L.  367;  Bach  v.  Ballard,  13  La.  Ann.  487;  Duncan  v.  Sylvester.  16  Me. 
388;  Chenery  v.  Dole.  39  Me.  162;  .Tohn  '•.  Sabattis,  69  Me.  473;  Porter  '•.  Perkins, 
5  Mass.  233;  Porter  v.  Hill.  9  Mass.  34;  Ballou  v.  Hale,  47  N.  II.  347;  Woodhull  v. 
Longstreet,  3  Har.  405 :  Lloyd  v.  Conover,  1  Dutch.  47 ;  Medlin  r.  Steele,  75  N.  C, 
154;  Jones  v.  Reeves,  6  Rich.  L.  132,  contra.     See  also  Duncan  v.  Duncan,  93  Ky.  37. 


<v\ 


560  CAVANAUGH   V.   JACKSON.  [CHAP.   IV. 

was  emploj'ed  b}-  plaintiff  and  defendant  to  make  a  survey  and  establish 
the  true  line.  Such  surve}-  was  made  in  December,  1880.  The  plaintiff 
testified  as  follows:  "Jackson  had  this  land  fenced  up  for  a  long 
time  prior  to  the  first  daj'  of  September,  1886,  —  maybe  four  or  five 
years  before  that  date,  —  along  with  other  lands  of  his.  .  .  .  Jackson 
and  I  established  a  line  of  fence  between  the  Coats  place,  which  I  now 
own,  and  the  Beaughan  place,  now  owned  by  Jackson  ;  we  had  the 
land  surveyed  from  the  center  of  section  28,  west  to  the  road.  We 
established  the  line  on  the  quarter-section  line,  and  when  we  established 
the  line,  Jackson  moved  his  fence  out  to  the  road,  and  enclosed  this 
strip  in  controversy  ;  that  strip  is  narrower  at  the  west  end  than  at  the 
the  east  end.  I  bought  the  Coats  place  from  Mr.  Orr,  but  the  deed 
did  not  include  this  strip,  and  Mr.  Warren  discovered  that'  I  had  no 
deed,  and  that  I  must  have  a  deed.  I  have  exercised  no  acts  of  owner- 
ship over  this  strip  of  land.  ...  I  had  A.  M.  Jones  survey  this  tract 
in  about  1872.  That  strip  is  one  hundred  yards  wider  at  the  east  end 
than  at  the  west  end.  Dan  Sullivan  assisted  Davidson  in  making  the 
last  survey.  .  .  .  Jackson  and  I  put  up  our  fences  on  the  line  as 
determined  by  Mr.  Davidson.  I  did  not  object  to  Mr.  Jackson  putting 
up  fence  on  line  from  centre  of  section  28,  west  to  the  road,  and  en- 
closing this  tract  in  dispute  ;  he  fenced  it  right  after  the  survey  made 
by  Mr.  Davidson.  That  line  never  was  enclosed,  except  a  small  por- 
tion thereof  enclosed  by  appellant,  until  Mr.  Jackson  fenced  it  after  the 
Dav.dsou  surve}-.  We  built  the  fences  on  the  lines  agreed  on.  We 
ran  cne  line  west  from  centre  of  section  28  to  the  road,  and  on  this 
line  Mr.  Jackson  was  to  build  his  fence,  and  I  was  to  build  as  much 
on  the  north  and  south  line  as  he  was  to  build  on  the  east  and  west 
line; ,  we  were  to,  and  did,  build  equal  portions  of  said  fence.  Jackson 
moved  out  his  fence,  and  enclosed  this  strip  of  land.  ...  I  never 
asked  Mr.  Jackson  for  the  land,  nor  to  be  let  into  possession  of  it." 

The  defendant  testified  that  he  had  occupied  and  used  the  land 
exclusively  since  1880,  and  paid  taxes  on  it  ever  since  1878,  when  he 
paid  his  proportion  for  the  Whitmire  patent  for  the  northwest  quarter 
of  section  28  ;  that  he  took  all  the  wood  he  needed  off  the  land  in  con- 
troversy since  the  establishment  of  the  boundary'  line,  and  had  pro- 
hibited others  from  cutting  wood  there  for  eight  or  ten  ^-ears  past. 
The  assessment  rolls  offered  in  evidence  showed  that  the  land  in  con- 
troversy liad  been  assessed  to  defendant  every  ^-ear  from  1878  to  1887, 
and  that  defendant  had  regularly  paid  said  taxes.  The  defendant 
testified  that  in  1872  a  survey  was  made  by  one  Jones  on  behalf  of  Mr. 
Whole}',  Mr.  Cavanaugh,  and  himself,  the  object  being  to  determine 
how  much  Mr.  Wholey  and  defendant  were  each  to  pay  for  the  patent 
for  the  land  granted  by  the  state  to  Whitmire. 

In  rebuttal,  the  plaintiff  proved  by  the  records  of  the  assessor  and 
tax  collector  tliat  he  had  had  the  lands  in  controversy  assessed  to  him 
for  the  years  1885  and  1887,  and  had  paid  the  tax  for  the  year  1885. 

We  think  that  on  this  evidence  the  defendant  was  entitled  to  judg- 


SECT.    I.]  CAVANAUGH   V.   JACKSON.  561 

ment.  The  parties  entered  into  an  express  agreement  fixing  the 
dividing  line  between  their  lands  ;  fences  were  built  upon  the  line  so 
established,  and  the  parties  have  ever  since  acquiesced  therein. 

It  is  well  settled  that  where  the  owners  of  contiguous  lots  b}-  parol 
agreement  mutually  establish  a  dividing  line,  and  thereafter  use  and 
occupv  their  respective  tracts  according  to  it  for  any  period  of  time, 
such  agreement  is  not  within  the  Statute  of  Frauds,  and  it  cannot  after- 
wards be  controverted  b}'  the  parties  or  their  successors  in  interest. 
White  V.  Spreckels,  75  Cal.  610;  Helm  v.  Wilson,  76  Cal.  485; 
Blair  I'.  Smith,  16  Mo.  273;  Orr  y.  Hadley,  36  N.  H.  575;  Laverty 
V.  Moore,  32  Barb.  347  ;  Houston  v.  Sneed,  15  Tex.  307.^  It  is  the 
policy  of  the  law  to  give  stabilit}-  to  such  an  agreement,  because  it  is 
the  most  satisfactor}'  waj"  of  determining  the  true  boundarv,  and  tends 
to  prevent  litigation.  Houston  v.  Matthews,  1  Yerg.  118;  Fisher 
V.   Bennehoff,   121   111.   435. 

It  is  claimed  b}'  respondent,  that,  as  the  payment  was  made  several 
rears  prior  to  the  time  when  he  received  his  deed  from  Coats  for  the 
land  in  controversy,  it  is  not  binding  upon  him  ;  but  the  evidence 
shows  that  the  plaintiff  was  in  possession  of  the  Coats  place,  and  claim- 
ing to  be  the  owner  up  to  the  line  established.  The  evident  meaning 
of  his  testimony  is,  that  he  had  paid  for  the  land,  but  had  failed  to 
secure  the  legal  title  thereto.  It  has  been  held  that  such  an  agreement, 
made  by  an  occupant  of  public  land,  was  binding  upon  him  after  he 
acquired  legal  title  from  the  government.  Jordan  v.  Deaton,  23  Ark. 
704.  See  also  Orr  v.  Hadley,  36  N.  H.  575  ;  Silvarer  v.  Hansen,  77 
Cal.  586. 

In  man}'  states  it  is  held  that  in  the  absence  of  an}'  express  agree- 
ment, where  the  boundary  line  has  been  recognized,  and  parties  have 
used  and  occupied  according  to  it  for  a  considerable  period,  although 
less  than  the  period  which  would  be  a  bar  under  the  statute  of  limita- 
tions, they,  and  all  claiming  under  them,  will  be  estopped  from  after- 
wards claiming  a  different  boundary.  Blair  v.  Smith,  16  Mo.  273; 
Smith  V.  Hamilton,  20  Mich.  438;  4' Am.  Rep.   398. 

The  agreement  establishing  a  dividing  line  between  the  plaintiff  and 
the  defendant  was  made  in  1881.  Coats  conve3'ed  to  Cavanaugh, 
April  30,   1884.     From  the  time  the  agreement  was   made  until  the 

1  Jenkins  v.  Trager,  40  Fed.  Rep.  726  ;  Watrons  v.  Morri.«on,  33  Fla.  261  ;  Cnr- 
starphen  v.  Holt,  96  Ga.  703;  Grim  v.  Murphy,  110  111.  271  ;  Duggan  v.  Uppendahl, 
197  111.  179;  Tate  r.  Foshee,  117  Ind.  322;  Jamison  v.  Petit,  6  Bush,  669;  Jones  v. 
I'ashby,  67  Mich.  459;  Tittsburgh  Iron  Co.  v.  Lake  Superior  Iron  Co.,  118  Mich.  109; 
Archer  v.  Helm,  69  Miss.  730;  Blair  v.  Smith,  16  Mo.  273;  Turner  v.  Baker,  8  Mo. 
App.  5S3,  64  Mo.  218  ;  Atchi.son  v.  Pease,  96  Mo.  566  ;  Barnes  (-■.  Allison,  166  Mo.  96 ; 
Bartlett  v.  Young,  63  X.  H.  265  ;  Hitchcock  v.  Lihby,  70  N.  PI.  399  ;  Vosburgh  ;•. 
Teator,  32  N.  Y.  561  ;  Bobo  v.  Richmond,  25  Ohio  St  115  ;  Hagey  v.  Detweiler,  35 
Pa  409:  Cooper  v.  Austin,  58  Tex.  494  ;  Ham  »•.  Smith.  79  Tex.  310;  Levy  v.  Mad" 
dox,  81  Tex.  210;  l.ecomte  v.  Toudouze,  82  Tex.  208  ;  Gwynn  v.  Schwartz,  32  W.  Va. 
487;  Teass  (•  St  Albans,  38  W.  Va.  1,  ace;  Liverpool  Wharf  v.  Prescott,  4  Allen, 
22,  7  .Allen,  494,  contra. 
VOL  I.  —  36 


562  PETER    V.    COMPTON.  [CHAP.    IV. 

commencement  of  this  action,  on  April  15,  1887,  plaintiff  never  ex- 
ercised an\-  acts  of  ownership  over  the  land  in  controversy.  This  long- 
contiiuied  acquiescence  b}-  the  plaintiff  in  the  line  previoush' established, 
we  think,  is  a  ratification  of  the  agreement  made  in  1881. 

Judgment  and  order  reversed,  and  cause  remanded  for  a  new  trial. 

Harrison,  J,,  and  Garootte,  J.,  concurred.^ 


/ 


D.  —  Agreements  not  to  be  performed  within  a  Year. 


PETER  V.   COMPTON. 
In  the  King's  Bknch,  Trinity  Term,  1693. 

[Reported  in  Skinner,  353.] 

The  question  upon  a  trial  before  Holt,  Chief  Justice,  at  nisi  prius, 
in  an  action  upon  the  case  upon  an  agreement,  in  which  the  defendant 
promised  for  one  guinea  to  give  the  plaintiff  so  man\-  at  the  day  of 
his  marriage,  was  if  such  agreement  ought  to  be  in  writing,  for  the 
marriage  did  not  happen  within  a  year.  The  Chief  Justice  advised 
Avitli  all  the  judges,  and  by  the  great  opinion  (for  there  was  diversity 
of  opinion,  and  his  own  was  e  contra),  where  the  agreement  is  to  be 
performed  u[iou  a  contingent,  and  it  does  not  appear  within  the  agree- 
ment that  it  is  to  be  performed  after  the  year,  there  a  note  in  writing 
is  not  necessary,  for  the  contingent  might  happen  within  the  year ;  but 
wMiere  it  appears  by  the  whole  tenor  of  the  agreement  that  it  is  to  be 
performed  after  the  year,  there  a  note  is  necessary,  otherwise  not. 

^  "  In  the  brief  of  respondent's  attorney  it  is  admitted,  '  there  was  no  dispute  or 
uncertaintv  as  to  where  the  true  line  was.  All  parties  knew  where  it  was,  but  they 
deliberatL'lv  disregarded  the  true  line,  and  made  one  to  suit  themselves.'  The  defend- 
ant does  not  rely  upon  adverse  possession  or  the  Statute  of  Limitations,  but  upon  the 
establishment  of  a  lioundary  line  by  parol.  This,  however,  is  not  such  a  case,  but  an 
attempt  to  convey  by  parol,  and  without  consideration,  a  strip  of  laud  belonging  to 
one  of  the  tracts  abutting  upon  a  well-recognized  boundary  line.  This  is  squarely  in 
the  teeth  of  the  Statute  of  Frauds.  Civ.  Code,  sec.  1091.  In  support  of  his  position 
in  reference  to  establishing  a  boundary  line  by  parol,  respondent  cites  and  relies  upon 
Cavanaugh  v.  Jackson,  91  Cal.  580.  In  that  case,  however,  as  stated  by  the  court, 
'  a  dispute  having  arisen  as  to  the  boundary  line  between  the  two  ranches,  a  surveyor 
was  employed  by  plaintiff  and  defendant  to  make  a  survey  and  establish  a  true  line. 
The  line  in  that  case  was  establi.shed  in  1881,  and  the  defendant  occujjied  and  used  it 
exclusively  up  to  tlie  commencement  of  his  action,  which  was  in  April,  1887,  and  the 
plaintiff  never  exercised  any  acts  of  ownership  over  it  during  that  period.'  And  the 
court  say,  '  This  long-continued  acquiescence  in  the  line  previously  established,  we 
think,  is  a  ratification  of  the  algreement  made  in  1881.'"  Nathan  v.  Diersseu,  134 
Cal.  282,  284. 

Boyd  ;;.  Graves,  4  Wheat.  513;  Sharp  v.  Blankenship,  67  Cal.  441;  Miller  v. 
McGlaun,  63  Ga.  435;  Vosburgh  v.  Teator,  32  N.  Y.  561;  Harris  v.  Oakley,  130 
N.  Y.  1,  5;  Ambler  ?•.  Cox,  13  Hun,  295  ;  Lennox  v.  Hendricks,  II  Greg.  33  ;  Nichol 
V.  Lytle,  4  Yerg.  450;  Gilchrist  v.  T>IcGce,  9  .Yerg.  455;  Lewallen  v.  Overton, 
9  HumpK  76 ;  Hartung  v.  Witte,  59  Wis.  285,  ace. 


SECT.    I.]       WARNER   V.   TEXAS    AND   PACIFIC   RY.    CO.  563 

WARNER   V.  TEXAS    AND   PACIFIC   RAILWAY    COMPANY. 

United  States  Supreme  Court,  Mat  5-November  30,  1896. 

[Reported  in  1&4  United  States,  418.] 

This  was  an  action  brought  May  9,  1892,  by  Warner  against  the 
Texas  and  Pacific  Railway-  Company,  a  corporation  created  by  the  laws 
of  the  United  States,  upon  a  contract  made  in  1874,  b}-  which  it  was 
agreed  between  the  parties  that  if  the  plaintiflf  would  grade  the  ground 
for  a  switch,  and  put  on  the  ties,  at  a  certain  point  on  the  defendant's 
railroad,  the  defendant  would  put  down  the  rails  and  maintain  the 
switch  for  the  plaintiffs  benefit  for  shipping  purposes  as  long  as  he 
needed  it.  The  defendant  pleaded  that  the  contract  was  oral,  and 
within  the  statute  of  frauds,  because  it  was  "  not  to  be  performed  within 
one  year  from  the  making  thereof,"  and  because  it  was  "  a  grant  or 
conveyance  by  this  defendant  of  an  estate  of  inheritance,  and  for  a 
term  of  more  than  one  year,  in  lands." 

At  the  trial,  the  plaintiff,  being  called  as  witness  in  his  own  behalf, 
testified  that  prior  to  the  year  1874  he  had  been  engaged  in  the  lumber- 
ing and  milling  business  in  Iowa  and  in  Arkansas,  and  in  contemplation 
of  breaking  up  and  consolidating  his  business,  came  to  Texas,  and 
selecting  a  point,  afterwards  known  as  Warner's  Switch,  as  a  suitable 
location,  providing  he  could  obtain  transportation  facilities  ;  that  he 
found  at  that  point  an  abundance  of  fine  pine  timber,  and  three  miles 
back  from  the  railroad,  a  stream,  known  as  Big  Sand}'  Creek,  peculiarly 
adapted  to  floating  logs,  and  lined  for  man}'  miles  above  with  pine 
timber;  that  in  1874  the  defendant's  agent,  after  conversing  with  him 
about  his  experience  in  the  lumber  business,  the  capacity  of  his  mill, 
and  tlie  amount  of  lumber  accessible  from  the  proposed  location,  made 
an  oral  contract  with  him  by  which  it  was  agreed  that  if  he  would  fur- 
nish the  ties  and  grade  the  ground  for  the  switch,  the  defendant  would 
put  down  the  iron  rails  and  maintain  the  switch  for  the  plaintiflTs 
benefit  for  shipping  purposes  as  long  as  he  needed  it;  that  the  plaintiff 
immediately  graded  the  ground  for  the  switch,  and  got  out  and  put 
down  the  ties,  and  the  defendant  put  down  the  iron  rails  and  estab- 
lished the  switch ;  and  that  the  plaintiff,  on  the  faith  of  the  con- 
tinuance of  transportation  facilities  at  the  switch,  put  up  a  large 
saw-mill,  bought  many  thousand  acres  of  land  and  timber  rights  and 
water  privileges  of  Big  Sandy  Creek,  made  a  tram  road  three  miles  long 
from  the  switch  to  the  creek,  and  otherwise  expended  large  sums  of 
money,  and  sawed  and  shipped  large  quantities  of  lumber,  until  the 
defendant,  on  May  19,  1887,  while  its  road  was  operated  by  receivers, 
tore  up  the  switch  and  ties,  and  destroN'ed  his  transportation  facilities, 
leaving  his  lands  and  other  property  without  any  connection  with  the 
ruih-o:id.  His  testimou}-  also  tended  to  prove  that  he  had  thereby  been 
injured  to  the  amount  of  more  than  $50,000,  for  which  the  defendant 


564  WARNER   V.   TEXAS    AND   PACIFIC   RY.    CO.       [CHAP.    TV. 

was   liable,   if  the  contract   sued   on    was    not   within   the    statute  of 
frauds. 

On  cross-examination,  the  plaintiflf  testified  that,  when  he  made  the 
contract,  he  expected  to  engage  in  the  manufacture  of  lumber  at  this 
place  for  more  than  one  jear,  and  to  sta3'  there,  and  to  have  a  site  for 
lumber  there  as  long  as  he  lived  ;  and  that  he  told  the  defendant's 
agent,  in  the  conversation  between  them  at  the  time  of  making  the 
contract,  that  there  was  lumber  enough  in  sight  on  the  railroad  to  run 
a  mill  for  ten  3'ears,  and  bj  moving  back  to  the  creek  there  would  be 
enough  to  run  a  mill  for  twenty  3'ears  longer. 

No  other  testimony  being  offered  by  either  party,  bearing  upon  the 
question  whether  the  contract  sued  on  was  within  the  statute  of  frauds, 
the  Ciicuit  Court,  against  the  plaintiff's  objection  and  exception,  ruled 
that  the  contract  was  within  the  statute,  instructed  the  jury  to  find 
a  verdict  for  the  defendant,  and  rendered  judgment  thereon,  which 
was  affirmed  by  the  Circuit  Court  of  Appeals,  upon  the  ground  that 
the  contract  was  within  the  statute  of  frauds,  as  one  not  to  be  per- 
formed within  a  year.  13  U.  S.  App.  236.  The  plaintiff  sued  out  this 
writ  of  error. 

ill-.  Horace  Chilton,  for  plaintiff  in  error. 

Mr.  John  F.  Dillon^  for  defendant  in  error.  Mr.  Winslow  S.  Pierce 
and  Mr.  David  D.  Duncan  were  on  his  brief. 

Mr.  Justice  Gray,  after  stating  the  case,  delivered  the  opinion  of 
the  court. 

The  statute  of  frauds  of  the  State  of  Texas,  reenacting  in  this  par- 
ticular the  English  statute  of  29  Car.  II.  c.  3,  §  4  (1677),  provides 
that  no  action  shall  be  brought  "  upon  anj-  agreement  which  is  not  to 
be  performed  within  the  space  of  one  year  from  the  making  thereof," 
unless  the  "agreement  upon  which  such  action  shall  be  brought,  or 
some  memorandum  or  note  thereof,  shall  be  in  writing  and  signed  by 
the  partv  to  be  charged  therewith,  or  b^'  some  person  b}'  him  there- 
unto law  full}' authorized."  Texas  Stat.  January  18,  1840;  1  Paschal's 
Digest  (4tli  ed.),  art.  3875,  Rev.  Stat,  of  1879,  art.  2464  ;  Bason  v. 
Hughart,  2  Tex.  476,  480. 

This  case  has  been  so  fulh*  and  abl}'  argued,  and  the  construction  of 
this  clause  of  the  statute  of  frauds  has  so  seldom  come  before  this 
court,  that  it  will  be  useful,  before  considering  the  particular  contract 
now  in  question,  to  refer  to  some  of  the  principal  decisions  upon  the 
subject  in  the  courts  of  England,  and  of  the  several  States. 

In  the  earliest  reported  case  in  England  upon  this  clause  of  the 
statute,  regard  seems  to  have  been  had  to  the  time  of  actual  perform- 
ance, in  deciding  that  an  oral  agreement  that  if  the  plaintiff  would 
procure  a  marriage  between  the  defendant  and  a  certain  lad}',  the  de- 
feiidunt  would  pay  him  fifty  guineas,  was  not  within  the  statute  ;  Lord 
Holt  saying:  "Though  the  promise  depends  upon  a  contingent,  the 
which  may  not  happen  in  a  long  time,  yet  if  the  contingent  happen 
w'thin  a  year,  tlie  action  shall  be  ni:iiiitaitiable,  and  is  not  within  the 
statute."     Francam  v.  Foster  (1692\  Skinner,  326  ;  s.  c.  Holt,  25. 


SECT.    I.]        WARNER    V.    TEXAS    AND   PACIFIC   RY.    CO.  565 

A  year  later,  another  ease  before  Lord  Holt  presented  the  question 
whether  the  M'ords  "  agreement  not  to  be  performed  within  one  year" 
should  be  construed  as  meaning  ever}'  agreement  which  need  not  be 
pL'rfornied  within  the  year,  or  as  meaning  onl}'  an  agreement  which 
could  not  lie  performed  within  the  year,  and  thus,  according  as  the 
one  or  the  other  construction  should  be  adopted,  including  or  excludino- 
an  agreement  which  might  or  might  not  be  performed  within  the  j'ear, 
without  regard  to  the  time  of  actual  performance.  The  latter  was 
decided  to  be  the  true  construction. 

That  was  an  action  upon  an  oral  agreement,  by  which  the  defendant 
promised  for  one  guinea  paid,  to  pay  the  plaintiff  so  many  at  the  day 
of  his  marriage  ;  and  the  marriage  did  not  happen  within  the  year. 
The  case  was  considered  b}'  all  the  judges.  Lord  Holt  "  was  of  opin- 
ion that  it  ought  to  have  been  in  writing,  because  the  design  of  the 
statute  was,  not  to  trust  to  the  memory  of  witnesses  for  a  longer  time 
than  one  year."  But  the  great  majority  of  the  judges  were  of  opinion 
that  the  statute  included  those  agreements  onl}'  that  were  impossible 
to  be  performed  within  the  3'ear,  and  that  the  case  was  not  within  the 
statute,  because  the  marriage  might  have  happened  within  a  j'ear  after 
the  agreement ;  and  laid  down  this  rule  :  "  Where  the  agreement  is  to 
be  performed  upon  a  contingent,  and  it  does  not  appear  within  the 
agreement  that  it  is  to  be  performed  after  the  year,  then  a  note  in 
writing  is  not  necessar}',  for  the  contingent  might  happen  within  the 
year ;  but  where  it  appears  b}-  the  whole  tenor  of  the  agreement  that 
it  is  to  be  performed  after  tiie  year,  there  a  note  is  necessary."  Peter 
V.  Compton  (1693),  Skinner,  353  ;  s.  c.  Holt,  326  ;  s.  c.  cited  b}' 
Lord  Holt  in  Smith  v.  Westall  1  Ld.  Raym,  316,  317  ;  Anon.,  Comyns, 
49,  50  ;  Comberbach,  463. 

Accordingly'  about  the  same  time,  all  the  judges  held  that  a  promise 
to  pay  so  much  money  upon  the  return  of  a  certain  ship,  which  ship 
happened  not  to  return  within  two  years  after  the  promise  made,  was 
not  within  the  statute,  "  for  that  b^-  possibility  the  ship  might  have 
returned  witliin  a  year ;  and  although  by  accident  it  happened  not  to 
return  so  soon,  yet,  they  said,  that  clause  of  the  statute  extends  only 
to  such  promises  wiiere,  b^'  the  express  appointment  of  the  part}',  the 
thing  is  not  to  be  performed  within  a  year."     Anon.,  1  Salk.  280. 

Again,  in  a  case  in  tlie  King's  Bench  in  17G2,  an  agreement  to  leave 
money  by  will  was  held  not  to  be  within  the  statute,  although  uncer- 
tain as  to  the  time  of  performance.  Lord  Mansfield  said  that  the  law 
was  settled  by  the  earlier  cases.  Mr.  Justice  Denison  said  :  "  The 
statute  of  frauds  plainly  means  an  agreement  not  to  be  performed 
within  the  space  of  a  year,  and  expressly  and  specifically  so  agreed.  A 
confm^ency  is  not  within  it;  nor  any  case  that  depends  upon  contin- 
gency. It  does  not  extend  to  cases  where  the  thing  onl}'  mai/  be  per- 
formed within  the  year;  and  the  act  cannot  be  extended  further  than 
the  words  of  it."  And  Mr.  Justice  Wilmot  said  that  the  rule  laid 
down  in  1  Salk,  280,  above  quoted,  was  the  true  rule.  Fenton  v. 
Emblers,  3  Burrow,  1278;  s.  c.  1  W.  Bl.  353. 


566  WARNER   V.   TEXAS   AND   PACIFIC    RY.    CO.       [CHAP.   IV. 

It  thus  appears  to  have  been  the  settled  construction  of  this  chiuse 
of  the  statute  in  England,  before  the  Declaration  of  Independence, 
that  an  oral  agreement  whicli,  according  to  the  intention  of  the  parties, 
as  shown  by  tlie  terms' of  the  contract,  might  be  fully  performed  within 
a  vear  from  the  time  it  was  made,  was  not  within  the  statute,  although 
tlie  time  of  its  performance  was  uncertain,  and  might  probably  extend, 
and  be  expected  by  the  parties  to  extend,  and  did  in  fact  extend, 
beyond  the  year. 

The  several  States  of  the  Union,  in  reenacting  this  provision  of  the 
statute  of  frauds  in  its  original  words,  must  be  taken  to  have  adopted 
the  known  and  settled  construction  which  it  had  received  by  judicial 
decisions  in  England.  Tucker  v.  Oxley,  5  Cranch,  34,  42  ;  Pennock  v. 
Dialogue,  2  Pet.  1,  18;  Macdonald  v.  Hovey,  110  U.  S.  619,  628. 
And  the  rule  established  in  England  by  those  decisions  has  ever  since 
been  generally  recognized  in  England  and  America,  although  it  may  in 
a  few  instances  have  been  warped  or  misapplied. 

The  decision  in  Boydell  v.  Drummond  (1809),  11  East,  142,  which 
has  been  sometimes  supposed  to  have  modified  tlie  rule,  was  really  in 
exact  accordance  with  it.  In  that  case,  the  declaration  alleged  that 
the  Boydells  had  proposed  to  publish  by  subscription  a  series  of  large 
prints  from  some  of  the  scenes  of  Shakespeare's  plays,  in  eighteen 
numbers  containing  four  plates  each,  at  the  price  of  three  guineas  a 
number,  payable  as  each  was  issued,  and  one  number,  at  least,  to  be 
annually  published  after  the  delivery  of  the  first;  and  that  the  de- 
fendant became  a  subscriber  for  one  set  of  prints,  and  accepted  and 
paid  for  two  numbers,  but  refused  to  accept  or  pay  for  the  rest.  The 
first  prospectus  issued  by  the  publishers  stated  certain  conditions,  in 
substance  as  set  out  in  the  declaration,  and  others  showing  the  magni- 
tude of  the  undertaking,  and  that  its  completion  would  unavoidably 
take  a  considerable  time.  A  second  prospectus  stated  that  one  num- 
ber at  least  should  be  published  annuallj-,  and  the  proprietors  were 
confident  that  they  should  be  enabled  to  produce  two  numbers  within 
the  course  of  every  year.  The  book  in  which  the  defendant  subscribed 
his  name  had  only,  for  its  title,  "  Shakespeare  subscribers,  their  signa- 
tures," without  any  reference  to  either  prospectus.  The  contract  was 
held  to  be  within  the  statute  of  frauds,  as  one  not  to  be  performed 
within  a  year.  l)ecause,  as  was  demonstrated  in  concurring  opinions  of 
Lord  P^Uenhorough  aud  Justices  Grose,  La  Blanc,  and  Bayley,  the 
contract,  according  to  the  understanding  and  contemplation  of  the 
))arties,  as  manifested  by  the  terms  of  the  contract,  was  not  to  be  fully 
performed  (by  the  completion  of  the  whole  work)  within  the  year; 
aud  consequently,  a  full  completion  within  the  year,  even  if  physically 
possil)le,  would  not  have  been  according  to  the  terms  or  the  intent  of 
the  contract,  and  could  not  have  entitled  the  publishers  to  demand 
immediate  payment  of  the  whole  subscription. 

In  Wells  V.  Ilorton  (1826),  4  Bing.  40;  s.  c.  12  .L  B.  Moore,  177,  it 
Tvns  held  to  be  settled  by  the  earlier  authorities  that  an  agreement  by 


SECT.   I.]       WARNER   V.  TEXAS   AND   PACIFIC   RY.   CO.  567 

which  a  debtor,  in  consideration  of  his  creditors  agreeing  to  forbear  to 
sue  him  during  his  lifetime,  promised  that  his  executor  should  pay  the 
amount  of  the  debt,  was  not  within  the  statute  ;  and  Chief  Justice  Best 
said:  "The  present  case  is  clearly-  distinguishable  from  Boydell  v. 
Drummond,  where  upon  the  face  of  the  agreement  it  appeared  that  the 
contract  was  not  to  be  executed  within  a  year."  ^ 

lu  Souch  V.  Stravvbridge  (1846),  2  C.  B.  808,  a  contract  to  support 
a  child,  for  a  guinea  a  month,  as  long  as  the  child's  father  should  think 
proper,  was  held  not  to  be  within  the  statute,  which,  as  Chief  Justice 
Tindal  said,  "  speaks  of  '  an}'  agreement  that  is  not  to  be  performed 
within  the  space  of  one  year  from  the  making  thereof  ;  pointing  to 
contracts  the  complete  performance  of  which  is  of  necessity  extended 
beyond  the  space  of  a  year.  That  appears  clearly  from  the  case  of 
Boydell  v.  Drummond,  the  rule  to  be  extracted  from  which  is,  that, 
where  the  agreement  distinctly  shows,  upon  the  face  of  it,  that  the 
parties  contemplated  its  performance  to  extend  over  a  greater  space  of 
time  than  one  year,  the  case  is  within  the  statute  ;  but  that,  where  the 
contract  is  such  that  the  whole  tnay  be  performed  within  a  year,  and 
there  is  no  express  stipulation  to  the  contrary,  the  statute  does  not 
apply." 

In  Murphy  v.  O'Sullivan  (1866),  11  Irish  Jurist  (n.  s.)  Ill,  the 
Court  of  Exchequer  Chamber  in  Ireland,  in  a  series  of  careful  opinions 
by  Mr.  Justice  O'Hagan  (afterwards  Lord  Chancellor  of  Ireland), 
Baron  Fitzgerald,  Chief  Baron  Pigot,  and  Chief  Justice  Monahan, 
reviewing  the  JLnglish  cases,  held  that  under  the  Irish  statute  of  frauds 
of  7  Will.  III.  c.  12  (which  followed  in  this  respect  the  words  of  the 
English  statute),  an  agreement  to  maintain  and  clothe  a  man  during 
his  life  was  not  required  to  be  in  writing. 

In  the  recent  case  of  McGregor  v.  McGregor,  21  Q.  B.  D.  424 
(1888),  the  English  Court  of  Appeal  held  that  a  lawful  agreement  made 
between  husband  and  wife,  in  compromise  of  legal  proceedings,  by 
whicli  they  agreed  to  live  apart,  the  husband  agreeing  to  allow  the 
wife  a  weekly  sura  for  maintenance,  and  she  agreeing  to  maintain  her- 

1  Promises  which  by  their  terms  extend  over  the  h'fe  of  the  promisor  or  promisee  are 
not  within  the  statute.  Hill  v.  .Tamieson,  16  Ind.  125  ;  Bell  ".  Hewitt's  Ex.,  24  Ind.  280 ; 
Harper  v.  Harper,  57  Ind.  547;  Welz  v.  Khodius,  87  lud.  1;  Pennsylvania  Co.  v. 
Dolau,  6  Ind.  App.  109 ;  Atchison,  &c.  R.  K.  Co.  v.  English,  38  Kan.  1 10  ;  Howard  v. 
Burgen,  4  Dana,  1.37  ;  Bull  v.  McCrea,  fe  B.  Mon.  422  ;  Myles  v.  Myles,  6  Bush,  237  ; 
Stowers  I'.  HoUis.  83  Ky.  544;  Hutchison,  46  Me.  154;  Worthy  r.  Jones,  1 1  Gray, 
168  ;  Carr  v.  McCarthy,  70  Mich.  258;  McCorraick  v.  Druminett,  9  Neb.  384  ;  Bland- 
ing  V.  Sargent,  33  N.  H.  239  ;  Dresser  v.  Dresser,  35  Barb.  573 ;  Thorp  v.  Stewart,  44 
Hun,  232;  Richardson  v.  Pierce,  7  R.  I.  330;  East  Line  Co.  v.  Scott,  72  Tex.  70; 
Blanchard  v.  Weeks,  34  Vt.  589  ;  Thomas  v.  Armstrong,  86  Va.  323;  Heath  v.  Heath, 
31  Wis.  223.  But  see  con/ra,  Vose  v.  Strong,  45  111.  App.  98,  aff'd.  144  111.  108; 
Deaton   v.  Tennessee   Coal  Co.,  12  Heisk.  650. 

Similarly  contracts  to  be  performed  at  the  death  of  a  person  are  not  within  the 
statute.  Frost  v.  Tarr,  53  Ind.  390  ;  Riddle  v.  Backus,  38  la.  81  ;  Sword  >:  Keith,  31 
Mich.  247;  Updike  v.  Ten  Broeck,  3  Vroom,  105;  Kent  v.  Kent,  62  N.  Y.  560; 
Jiison  V.  Gilbert,  26  Wis.  637. 


568  WAENER   V.    TEXAS   AND   PACIFIC   RY.   CO.       [CHAP.   T7. 

self  and  her  children,  and  to  indemnif}'  him  against  any  debts  con- 
tracted by  her,  was  not  within  the  statute.  Lord  Esher,  M.  R.,  thought 
the  true  doctrine  on  the  subject  was  that  laid  down  b}'  Chief  Justice 
Tindal  in  the  passage  above  quoted  from  Souch  v.  Strawbridge.  Lord 
Justice  Lindley  said:  ''  The  provisions  of  the  statute  have  been  con- 
strued in  a  series  of  decisions  from  which  we  cannot  depart.  The 
effect  of  these  decisions  is  that  if  the  contract  can  by  possibilit}'  be 
performed  within  the  year,  tlie  statute  does  not  appl}-."  Lord  Justice 
Bowen  said:  '•'  There  has  been  a  decision  which  for  two  hundred  years 
has  been  accepted  as  the  leading  case  on  the  subject.  In  Peter  v. 
Compton,  it  was  held  that  '  an  agreement  that  is  not  to  be  performed 
within  the  space  of  a  year  from  the  making  thereof  means,  in  the 
statute  of  frauds,  an  agreement  which  appears  from  its  terms  to  be 
Incapable  of  performance  within  the  year."  And  each  of  the  three 
judges  took  occasion  to  express  approval  of  tlie  decision  in  Murphy  v. 
O'Sullivan,  above  cited,  and  to  disapprove  the  opposing  decision  of 
Hawkins,  J.,  in  Davey  v.  Shannon,  4  Ex.  D.  81. 

The  cases  on  this  subject  in  the  courts  of  the  several  States  are 
generalh'  in  accord  with  the  English  cases  above  cited.  The}'  are  so 
numerous,  and  have  been  so  fully  collected  in  Browne  on  the  Statute 
of  Frauds  (5th  ed.),  c.  13,  that  we  shall  refer  to  but  few  of  them, 
other  than  those  cited  by  counsel  in  the  case  at  bar. 

In  Peters  v.  Westborough,  19  Pick.  364,  an  agreement  to  support  a 
girl  of  twelve  ^^ears  old  until  she  was  eighteen  was  held  not  to  be 
within  the  statute.^  Mr.  Justice  Wilde,  in  delivering  judgment,  after 
quoting  Peter  iK  Compton,  Fenton  v.  Emblers,  and  Boj'dell  v.  Drum- 
mond,  above  cited,  said:  ''From  these  authorities  it  appears  to  be 
settled,  that  in  order  to  bring  a  parol  agreement  within  the  clause  of 
the  statute  in  question,  it  must  either  have  been  expressly  stipulated 
by  the  parties,  or  it  must  appear  to  have  been  so  understood  by  them, 
that  the  agreement  was  not  to  be  performed  within  a  year.  And  this 
stipulation  or  understanding  is  to  be  absolute  and  certain,  and  not  to 
depend  upon  any  contingency.  And  this,  we  think,  is  the  clear  mean- 
ing of  the  statute.  In  the  present  case,  the  performance  of  the  plain- 
tiffs agreement  with  the  child's  father  depended  on  the  contingency'  of 
her  life.  If  she  had  continued  in  the  plaintiff's  service,  and  he  had 
supported  lier,  and  she  had  died  witliin  a  year  after  the  making  of  the 
agreement,  it  would  have  been  fuUv  performed.  And  an  agreement 
by  parol  is  not  within  the  statute,  when  by  the  happening  of  an}'  con- 
tingency it  might  be  performed  within  a  year." 

In  many  other  States,  agreements  to  support  a  person  for  life  have 

1  Wooldridge  n.  Stern,  42  Fed.  Rep.  311 ;  White  v.  Murtland,  71  111.  250;  McKin- 
ney  v.  McCloskey,  8  Daly,  368,  76  N.  Y.  594 ;  Taylor  v.  Deseve,  81  Tex.  246,  ace. 
See  also  Wiggins  y.  Keizer,  6  lud.  2.52;  Mollis  u.  Stowers,  83  Ky.  544;  Ellicott  v. 
Turner,  4  Md.  476  ;  McLees  v.  Hale,  10  Wend.  426 ;  Shahan  v.  Swan,  4?  Oiiio  St. 
25. 

(joodrich  y.  Johnson,  66  Ind.  258;  Shate  v.  Dorr,  5  Wend.  204;  Jones  v.  Haj, 
52  i'arl).  ^)0l,  cuiitra. 


SECT.    I.]        WAENER    V.   TEXAS   AND   PACIFIC    RY.    CO.  5G0 

been  held  not  to  be  within  the  statute.  Browne  on  Statute  of  Frauds, 
§  276.  The  decision  of  the  Supreme  Court  of  Tennessee  in  Deaton  v. 
Tennessee  Coal  Co.,  12  Heisk.  650,  cited  by  the  defendant  in  error, 
is  opposed  to  the  weight  of  authorit}'. 

In  Roberts  v.  Rockbottom  Co.,  7  Met.  46,  Chief  Justice  Shaw  de- 
clared the  settled  rule  to  be  that  "  when  the  contract  ma}',  b}-  its 
terms,  be  fully  performed  within  the  year,  it  is  not  void  by  the  statute 
of  frauds,  although  in  some  contingencies  it  may  extend  bej'ond  a 
year";  and  stated  the  case  then  before  the  court  as  follows:  "The 
contract  between  the  plaintiff  and  the  company  was  that  they  should 
employ  him,  and  that  he  should  serve  them,  upon  the  terms  agreed  on, 
five  years,  or  so  long  as  Leforest  should  continue  their  agent.  This  is 
a  contract  which  might  have  been  fully  performed  within  the  3-ear.  The 
legal  effect  is  the  same  as  if  it  were  expressed  as  an  agreement  to 
serve  the  company  so  long  as  Leforest  should  continue  to  be  their 
agent,  not  exceeding  five  years  ;  though  the  latter  expression  shows  a 
little  more  clearly  that  the  contract  might  end  within  a  3'ear,  if  Leforest 
should  quit  the  agency  within  that  time." 

In  Blanding  v.  Sargent,  33  N.  H.  239,  the  court  stated  the  rule,  as 
established  b}'  the  authorities  elsewhere,  and  therefore  properl}'  to  be 
considered  as  adopted  by  the  legislature  of  New  Hampshire  when 
re-(Miafting  the  statute,  to  be  that  "the  statute  does  not  appl}'  to  an}' 
contract,  unless  by  its  express  terras  or  by  reasonable  construction  it  is 
not  to  be  performed,  that  is,  incapable  in  any  event  of  being  per- 
formed, within  one  year  from  the  time  it  is  made  "  ;  and  that  "  if  by 
its  terms,  or  by  reasonable  construction,  the  contract  can  be  fully  per- 
formed within  a  year,  although  it  can  only  be  done  by  the  occurrence  of 
some  contingency  by  no  means  likely  to  happen,  such  as  the  death  of 
some  party  or  person  referred  to  in  the  contract,  the  statute  has 
no  application,  and  no  writing  is  necessary  "  ;  and  therefore  that  an 
agreement  by  a  physician  to  sell  out  to  another  physician  his  business 
in  a  certain  town,  and  to  do  no  more  business  there,  in  consideration  of  a 
certain  sum  to  be  paid  in  five  years,  was  not  within  the  statute,  because 
"  if  the  defendant  had  died  within  a  year  from  the  making  of  the  con- 
tract, having  kept  his  agreement  while  he  lived,  his  contract  would 
have  been  fully  performed."  The  decisions  in  other  States  are  to  the 
same  effect.     Browne  on  Statute  of  Frauds,  §  277. 

In  Hinckley  ?>.  Southgate,  11  Vt.  428,  cited  by  the  defendant  in 
error,  the  contract  held  to  be  within  the  statute  of  frauds  was  in  ex- 
press terms  to  carry  on  a  mill  for  a  year  from  a  future  day  ;  and  the 
suggestion  in  the  opinion  that  if  the  time  of  performance  depends 
upon  a  contingency,  the  test  is  whether  the  contingency  will  probably 
happen,  or  may  reasonably  be  expected  to  happen,  within  the  year, 
was  not  necessary  to  the  decision  of  the  case,  and  cannot  stand  with 
the  other  authorities.     Browne  on  Statute  of  Frauds,  §  279. 

In  Linscott  v.  Mclntire,  15  Maine,  201,  also  cited  by  the  defendant 
in  error,  an  agreement  to  sell  a  farm  at  the  best  advantage,  and  to  pay 


570  WARNER    V.   TEXAS   AND   PACIFIC   RY.    CO.       [CHAP.    IV. 

to  the  plaintiff  any  sum  remaining  after  refunding  the  defendant's 
advances  and  paying  him  for  his  trouble,  was  held  not  to  be  within  the 
statute  of  frauds;  Chief  Justice  Weston  saying:  "The  sale  did  not 
happen  to  be  made  until  a  year  had  expired  ;  but  it  might  have  taken 
place  at  an  earlier  period,  and  there  is  nothing  in  the  case  from  which 
it  appenrs  that,  in  the  contemplation  of  the  parties  at  the  time,  it  was 
to  be  delayed  beyond  a  year.  This  clause  of  the  statute  has  been 
limited  to  cases  where,  b}'  the  express  terms  of  the  agreement,  the 
contract  was  not  to  be  performed  within  the  space  of  a  year.  And  it 
has  been  held  to  be  no  objection  that  it  depended  on  a  contingenc}', 
wliich  might  not  and  did  not  happen,  until  after  that  time." 

In  Ilenin  v.  Butters,  20  Maine,  119,  likewise  cited  hy  the  defendant 
in  error,  the  contract  held  to  be  within  the  statute  could  not  possibly 
have  been  performed  within  the  year,  for  it  was  to  clear  eleven  acres 
in  three  years,  one  acre  to  be  seeded  down  the  present  spring,  one 
acre  tiie  next  spring,  and  one  acre  the  spring  following,  and  to  receive 
in  consideration  thereof  all  the  proceeds  of  the  land,  except  the  two 
acres  first  seeded  down. 

In  Broad  well  v.  Getman,  2  Denio,  87,  the  Supreme  Court  of  New 
York  stated  the  rule  thus:  "Agreements  which  may  be  completed 
witliin  one  ^ear  are  not  within  the  statute  ;  it  extends  to  such  only  as 
by  their  express  terms  are  not  to  be,  and  cannot  be,  carried  into  full 
execution  until  after  the  expiration  of  that  time."  The  contract  there 
sued  (m  was  an  agreement  made  in  January,  1841,  b}'  which  the  de- 
fendant agreed  to  clear  a  piece  of  woodland  for  the  plaintiff,  and  to 
parth'  make  a  fence  at  one  end  of  it,  which  the  plaintiff  was  to  com- 
plete, the  whole  to  l)e  done  by  the  spring  of  1842  ;  and  the  defendant 
was  to  have  for  his  compensation  the  wood  and  timber,  except  that  used 
for  the  fence,  and  also  the  crop  to  be  put  in  bj'  him  in  the  spring  of 
1842.  The  court  well  said  :  "  As  this  agreement  was  made  in  January, 
1841,  and  could  not  be  completely  executed  until  the  close  of  the  sea- 
son of  1842,  it  was  within  the  statute,  and  not  being  in  writing  and 
signed  was  void.  Upon  this  point  it  would  seem  difficult  to  raise  a 
doubt  upon  the  terms  of  the  statute." 

In  Pitkin  v.  Long  Island  Railroad,  2  Barb.  Ch.  221,  cited  by  the 
defendant  in  error,  a  bill  in  equity  to  compel  a  railroad  compan}'  to 
perform  an  agreement  to  maintain  a  permanent  turnout  track  and  stop- 
ping place  for  its  freight  trains  and  passenger  cars  in  the  neighl)orhood 
of  the  plaintiff"s  property,  was  dismissed  by  Chancellor  Walworth 
upon  several  grounds,  the  last  of  which  was  tliat,  as  a  mere  executor}' 
agreement  to  continue  to  stop  with  its  cars  at  that  place,  "  as  a  per- 
manent arrangement,"  the  agreement  was  within  the  statute  of  frauds, 
because  from  its  nature  and  terms  it  was  not  to  be  performed  by  the 
company  within  one  year  from  the  making  thereof. 

In  Kent  v.  Kent,  62  N.  Y.  560,  an  agreement  by  which  a  father,  in 
consideration  of  his  son's  agreeing  to  work  for  him  upon  his  farm, 
without  specifying  any  time  for  the  service,  agreed  that  the  value  of 


SECT.    T.]        WARNER   V.    TEXAS   AND   PACIFIC   RY.    CO.  571 

the  work  should  be  paid  out  of  his  estate  after  his  death,  which  did  not 
happen  until  twent}'  years  after  the  son  ceased  work,  was  not  within 
the  statute.  Judge  Allen,  delivering  the  judgment  of  the  Court  of 
Appeals,  said:  "The  statute,  as  interpreted  by  courts,  does  not  in- 
clude agreements  which  may  or  may  not  be  performed  within  one  year 
from  the  making,  but  merel}'  those  which  within  their  terms,  and  con- 
sistent with  tlie  rights  of  the  parties,  cannot  be  performed  within  that 
time.  If  the  agreement  may  consistent!}'  with  its  terms  be  entirel}- 
performed  within  the  year,  although  it  may  not  be  probable  or  expected 
that  it  will  be  performed  within  that  time,  it  is  not  within  the  condem- 
nation of  the  statute." 

In  Saunders  i'.  Kasterbine,  6  B.  Monroe,  17,  cited  bj'the  defendant  in 
error,  the  contract  proved,  as  stated  in  the  opinion  of  the  court,  was  to 
execute  a  bill  of  sale  of  a  slave  when  the  purchaser  had  paid  the  price 
of  $400,  in  monthly  instalments  of  from  §4  to  $8  each,  which  would 
necessarily  postpone  performance,  by  either  party,  beyond  the  j-ear. 

In  Railwa}'  Co.  v.  AVhitley,  54  Ark.  199,  a  contract  b}'  which 
a  railway  compan}-,  in  consideration  of  being  permitted  to  build 
its  road  over  a  man's  land,  agreed  to  construct  and  maintain  cattle 
guaids  on  each  side  of  the  road,  was  held  not  to  be  within  the  statute, 
because  it  was  contingent  upon  the  continuance  of  the  use  of  the  land 
for  a  railroad,  which  might  have  ceased  within  a  year.  And  a  like 
decision  was  made  in  Sweet  v.  Desha  Lumber  Co.,  56  Ark.,  629, 
upon  facts  almost  exactly  like  those  in  the  case  at  bar. 

The  construction  and  application  of  this  clause  of  the  statute  of 
frauds  first  came  before  this  court  at  December  term,  1866,  in  Packet 
Co.  t'.  Sickles,  5  Wall.  580,  which  arose  in  the  District  of  Columbia 
under  the  statute  of  29  Car.  II.  c.  3,  §  4,  in  force  in  the  State  of  Mar^'- 
land  and  in  the  District  of  Columbia.  Alexander's  British  Statutes  in 
Maryland,  509  ;  Ellicott  v.  Peterson,  13  Md.  476,  487  ;  Comp.  Stat. 
D.  d,  c.  23,  §  7. 

That  was  an  action  upon  an  oral  contract  b}'  which  a  steamboat 
company  agreed  to  attach  a  patented  contrivance,  known  as  the  Sickles 
cut-off,  to  one  of  its  steamboats,  and  if  it  should  effect  a  saving  in 
the  consumption  of  fuel,  to  use  it  on  that  boat  during  the  continu- 
ance of  the  patent,  if  the  boat  should  last  so  long  ;  and  to  paj'  to  the 
plaintiffs  vveekl\-,  for  the  use  of  the  cut-otf,  three  fourths  of  the  value 
of  the  fuel  saved,  to  be  ascertained  in  a  specified  manner.  At  the 
date  of  the  contract,  the  patent  had  twelve  3-ears  to  run.  The  court, 
in  an  opinion  delivered  by  Mr.  Justice  Nelson,  held  the  contract  to  be 
within  the  statute  ;  and  said  :  "  The  substance  of  the  contract  is  that 
the  defendants  are  to  pa}'  in  money  a  certain  proportion  of  the  ascer- 
tained value  of  the  fuel  saved  at  stated  intervals  throughout  the  period 
of  twelve  years,  if  the  boat  to  which  the  cut-off  is  attached  should  last 
so  long."  "  It  is  a  contract  not  to  be  performed  within  the  year,  sub- 
ject to  a  defeasance  by  tlie  happening  of  a  certain  event,  which  might 
or  mililit  not  occur  within  that  time."     5  Wall.  594-596.     And  refer- 


572  WARNER   V.    TEXAS  AND   PACIFIC   RY.    CO.       [CHAP.   IV. 

ence  was  made  to  Birch  v.  Liverpool,  9  B.  &  C.  392,  and  Dobson  v. 
Collis,  1  H.  &  N.  81,  in  each  of  which  the  agreement  was  for  the  hire  of 
a  thing,  or  of  a  person,  for  a  term  specified  of  more  than  a  year, 
determinable  by  notice  witliin  the  3'ear,  and  therefore  within  the  stat- 
ute, because  it  was  not  to  be  performed  within  a  year,  although  it 
was  defeasible  within  that  period. 

In  Packet  Co.  v.  Sickles,  it  appears  to  have  been  assumed,  almost 
without  discussion,  that  the  contract,  according  to  its  true  construction, 
was  not  to  be  performed  in  less  than  twelve  ^ears,  but  was  defeasible 
b}'  an  event  which  might  or  might  not  happen  within  one  year.  It 
may  well  be  doubted  whether  that  view  can  be  reconciled  with  the 
terms  of  the  contract  itself,  or  with  the  general  current  of  the  author- 
ities. Tlie  contract,  as  stated  in  the  fore  part  of  the  opinion,  was  to 
use  and  pay  for  the  cut-off  upon  the  boat  '•  during  the  continuance  of 
the  said  patent,  if  the  said  boat  should  last  so  long."  5  AVall.  581, 
594  ;  s.  c.  (Lawyer's  Cop.  Pub.  Co.  ed.)  bk.  18,  pp.  552,  554.  The 
terms  ""during  the  continuance  of"  and  "last  so  long"  would  seem 
to  be  precisely  equivalent ;  and  the  full  performance  of  the  contract  to 
be  limited  alike  l)^'  the  life  of  the  patent,  and  by  the  life  of  the  boat. 
It  is  difficult  to  understand  how  the  duration  of  the  patent  and  the 
duration  of  the  boat  differed  from  one  another  in  their  relation  to  the 
performance  or  the  determination  of  the  contract ;  or  how  a  contract 
to  use  an  aid  to  navigation  upon  a  boat,  so  long  as  she  shall  last, 
can  be  distinguished  in  principle  from  a  contract  to  support  a  man, 
so  long  as  he  shall  live,  which  has  been  often  decided,  and  is  generally 
admitted,  not  to  be  within  the  statute  of  frauds. 

At  October  term,  1875,  this  court,  speaking  by  Mr.  Justice  Miller, 
said  :  "  The  statute  of  frauds  applies  onl}'  to  contracts  which,  by  tiieir 
terms,  are  not  to  be  performed  within  a  year,  and  does  not  apply 
because  the}'  may  not  be  performed  within  that  time.  In  other  words, 
to  make  a  parol  contract  void,  it  must  be  apparent  that  it  was  the 
understanding  of  the  parties  that  it  was  not  to  be  performed  within  a 
3ear  from  the  time  it  was  made."  And  it  was  therefore  held,  in  one 
case,  that  a  contract  by  the  owner  of  a  valuable  estate,  employing  law- 
yers to  avoid  a  lease  thereof  and  to  recover  the  property,  and  promis- 
ing to  pay  them  a  certain  sum  out  of  the  proceeds  of  the  land  when 
recovered  and  sold,  w-as  not  within  the  statute,  because  all  this  might 
have  been  done  within  a  year ;  and  in  anotiier  case,  that  a  contract, 
made  early  in  November,  1869,  to  furnish  all  the  stone  required  to 
build  and  complete  a  lock  and  dam  which  the  contractor  with  the 
State  had  agreed  to  complete  by  September  1,  1871,  was  not  within 
the  statute,  because  the  contractor,  b}'  pushing  the  work,  might  have 
fully  completed  it  before  November,  1870.  McPherson  v.  Cox,  96 
U.  S.  404,  416,  417  ;  Walker  v.  Johnson,  9G  U.  S.  424,  427. 

In  Texas,  where  the  contract  now  in  question  was  made,  and  this 
action  upon  it  was  tried,  the  decisions  of  the  Supreme  Court  of  the 
State  are  in  accord  with  the  current  of  decisions  elsewhere. 


SECT.   I.]        WARNER   V.    TEXAS   AND   PACIFIC   EY.    CO.  573 

111  Thoiivenin  v.  Lea,  26  Tex.  G12,  the  court  said:  "An  agree- 
ment which  may  or  maj'  not  be  performed  within  a  year  is  not 
required  b}"  the  statute  of  frauds  to  be  in  writing ;  it  must  appear  from 
the  tigreement  itself  that  it  is  not  to  be  performed  within  a  j-ear."  In 
tliat  case,  the  owner  of  land  orally  agreed  to  sell  it  for  a  certain  price, 
payable  in  five  years  ;  the  purcliaser  agreed  to  go  into  possession  and 
make  improvements ;  and  the  seller  agreed,  if  there  was  a  failure  to 
complete  the  contract,  to  paA'  for  the  improvements.  The  agreement 
to  pay  for  the  improvements  was  held  not  to  be  within  the  statute  ;  the 
court  saying:  "There  is  nothing  from  which  it  can  be  inferred  that 
the  failure  to  complete  the  contract,  (hy  reducing  it  to  writing,  for 
instance,  as  was  stipulated  should  be  done,)  or  its  abandonment,  might 
not  occur  within  a  year  from  the  time  it  was  consummated.  The  pur- 
chaser, it  is  true,  was  entitled  by  the  agreement  to  a  credit  of  five 
years  for  the  payment  of  the  purchase  money,  if  the  contract  had  been 
reduced  to  writing.  But  appellant  might  have  sold  to  another,  or  the 
contract  might  have  been  abandoned  by  the  purchaser,  at  an}'  time ; 
and  npon  this  alone  depended  appellant's  liability  for  the  improve- 
mejits."      See  also  Thomas  r.  Hammond,  47  Tex.  42. 

In  the  very  recent  case  of  Weatherford,  &c.  Railwa}'  v.  Wood,  88 
Tex.  191,  it  was  held  that  an  oral  agreement  b}-  a  railroad  company 
to  issue  to  one  Wood  annually  a  pass  over  its  road  for  himself  and  his 
famih',  and  to  stop  its  trains  at  his  house,  for  ten  ^ears,  was  not 
within  the  statute.  The  court,  after  reviewing  man}-  of  the  authorities, 
said:  "  It  seems  to  be  well  settled  that  where  there  is  a  contingency 
expressed  upon  the  face  of  the  contract,  or  implied  from  the  circum- 
stances, upon  the  happening  of  which  within  a  j'ear  the  contract  or 
agreement  will  be  performed,  the  contract  is  not  within  the  statute, 
tiiough  it  be  clear  that  it  cannot  be  performed  within  a  year  except  in 
the  event  the  contingency  happens."  "  If  the  contingency  is  beyond 
the  control  of  the  i)arties,  and  one  that  may,  in  the  usual  course  of 
events,  happen  within  the  3'ear,  whereby  the  contract  will  be  per- 
formed, the  law  will  presume  that  the  parties  contemplated  its  happen- 
ing, whether  the}*  mention  it  in  the  contract  or  not.  The  statute  only 
applies  to  contracts  not  '  to  be  performed  within  the  space  of  one  3'ear 
from  the  making  thereof.'  If  the  contingenc}'  is  such  that  its  happen- 
ing may  bring  the  performance  within  a  year,  the  contract  is  not  within 
the  terms  of  the  statute  ;  and  this  is  true  whether  the  parties  at  the 
time  had  in  mind  the  happening  of  the  contingency  or  not.  The 
existence  of  the  contingency'  in  this  class  of  cases,  and  not  the  fact 
that  the  parties  may  or  ma}'  not  have  contemplated  its  happening,  is 
what  prevents  the  agreement  from  coming  within  the  scope  of  the 
statute.  Applying  these  principles  to  the  case  under  consideration,  we 
tiiink  it  clear  that  the  contract  above  set  out  was  not  within  the  stat- 
ute. The  agreement  to  give  the  pass  and  stop  the  trains  was  personal 
to  Wood  and  his  family.  He  could  not  transfer  it.  In  case  of  his 
(l":.th  within  the  3'ear,  the  obligation  of  the  company  to  him  would 


574  WARNER   V.    TEXAS   AND   PACIFIC   RY.    CO.       [CHAP.   IV. 

have  been  pevformed,  and  no  right  thereunder  would  have  passed 
to  his  heirs  or  executors.  If  it  be  held  that  each  member  of  his 
family  had  an  interest  in  the  agreement,  the  same  result  would  have 
followed  the  death  of  such  member,  or  all  of  them,  within  the  year. 
If  the  agreement  had  been  to  give  to  Wood  a  pass  -for  life,  it  would, 
under  the  above  autliorities,  not  have  been  within  the  statute  ;  and  we 
can  see  no  good  reason  for  holding  it  to  be  within  the  statute  because 
his  right  could  not  have  extended  be3'ond  ten  years.  The  happening 
of  the  contingency  of  the  death  of  himself  and  famil}'  within  a  year 
would  have  performed  the  contract  in  one  case  as  certainly  as  in  the 
other."     88  Tex.    195,   196. 

In  the  case  at  bar,  the  contract  between  the  railroad  company  and 
the  plaintiff,  as  testified  to  by  the  plaintiff  himself,  who  was  the  only 
witness  upon  the  point,  was  that  if  he  would  furnish  the  ties  and 
grade  the  ground  for  the  switch  at  the  place  where  he  proposed  to 
erect  a  saw-mill,  the  railroad  company'  would  "  put  down  the  iron  I'aila 
and  maintain  the  switch  for  the  plaintiff's  benefit  for  shipping  pur- 
poses as  long  as  he  needed  it." 

The  parties  may  well  have  expected  that  the  contract  would  con- 
tinue in  force  for  more  than  one  3'ear ;  it  may  have  been  ver^-  improb- 
able that  it  would  not  do  so  ;  and  it  did  in  fact  continue  in  force  for  a 
much  longer  time.  But  the}'  made  no  stipulation  which  in  terms,  or 
by  reasonable  inference,  required  that  result.  The  question  is  not 
what  the  probable,  or  expected,  or  actual  performance  of  the  contract 
was  ;  but  whether  the  contract,  according  to  the  reasonable  interpreta- 
tion of  its  terms,  required  that  it  should  not  be  performed  within  the 
year.  No  definite  term  of  time  for  the  performance  of  the  contract 
appears  to  have  been  mentioned  or  contemplated  by  the  parties ;  nor 
was  there  any  agreement  as  to  the  amount  of  lumber  to  be  sawed  or 
shipped  by  the  plaintiff,  or  as  to  the  time  during  which  he  should  keep 
up  his  mill. 

The  contract  of  the  railroad  company  was  with,  and  for  the  benefit 
of,  the  plaintiff  personally.  The  plaintiff's  own  testimon}-  shows 
(although  that  is  not  essential)  that  he  understood  that  the  perform- 
ance of  the  contract  would  end  with  his  own  life.  The  obligation  of 
the  railroad  conipan}'  to  maintain  the  switch  was  in  terms  limited 
and  restricted  by  the  qualification  "for  the  plaintiffs  benefit  for  ship- 
ping purposes  as  long  as  he  needed  it " ;  and  no  contingenc}'  which 
should  put  an  end  to  the  performance  of  the  contract,  other  than  his 
not  needing  the  switch  for  the  purpose  of  his  business,  appears  to 
have  been  in  the  mouth,  or  in  the  mind,  of  either  party.  If,  within 
a  year  after  the  making  of  the  contract,  the  plaintiff  had  died,  or 
had  abandoned  his  whole  business  at  this  place,  or  for  any  other 
reason  liad  ceased  to  need  the  switch  for  the  shipping  of  lumber,  the 
railroad  company  would  have  been  no  longer  under  any  obligation  to 
maintain  the  switch,  and  the  contract  would  have  been  brought  to  an 
end  by  having  been  fully  performed. 


SECT.    I.]        WARNER   V.   TEXAS    AND   PACIFIC   RY.    CO.  575 

Tlu;  complete  performance  of  the  contract  depending  upon  a  contin- 
gency which  might  happen  within  the  year,  the  contract  is  not  within 
the  statute  of  frauds  as  an  "  agreement  which  is  not  to  be  performed 
within  the  space  of  one  year  from  the  making  thereof" 

Nor  is  it  within  the  other  clause  of  the  statute  of  frauds,  relied  on 
in  the  answer,  which  requires  certain  conveyances  of  real  estate  to 
be  in  writing.  The  suggestion  made  in  the  argument  for  the  defendant 
in  error,  that  the  contract  was,  in  substance,  a  grant  of  an  easement 
in  i*eal  estate,  and  as  such  within  the  statute,  overlooks  the  difference 
between  the  English  and  the  Texan  statutes  in  this  particular.  The 
existing  statutes  of  Texas,  while  they  substantially  follow  the  English 
statute  of  frauds,  so  far  as  to  require  a  conveyance  of  an}'  "  estate  of 
inheritance  or  freehold,  or  for  a  term  of  more  than  one  year,  in  lands 
and  tenements,"  as  well  as  "  any  contract  for  the  sale  of  real  estate, 
or  the  lease  thereof  for  a  longer  terra  than  one  year,"  to  be  in  writing, 
omit  to  reenact  the  additional  words  of  the  English  statute,  in  the 
clause  concerning  conveyances,  "  or  an}-  uncertain  interest  of,  in,  to, 
or  out  of,"  lands  or  tenements,  and,  in  the  other  clause,  ''  or  any  in- 
terest in  or  concerning  them."  Stat.  29  Car.  II.  c.  3,  §§  1,  4  ;  Texas 
Rev.  Stat,  of  1879,  arts.  548,  2464;  1  Paschal's  Digest,  arts.  997, 
3875;  James  V.  Fulcrod,  5  Tex.  512,  516;  Stuart  y.  Baker,  17  Tex. 
417,   420;  Anderson  v.   Powers,   59  Tex.  213. 

Judgmeiit  reversed^  and  case  remanded  to  the  Circuit  Court,  with 
directions  to  set  aside  the  verdict  and  to  order  a  neic  trial} 

1  Heflin  v.  Milton,  69  Ala.  354 ;  Osmeiit  v.  M.cElrath^  68  Cal^466  ;  ^rlaad  t' Jiu. 
pell,  133  Cal.  475  ;  Clark  v.  Pendleton,  20  Conn.  495  ;  Sarles  v.  Sharlow,  5  Dak.  1 00 ; 
vv  lute  V.  Murtiana,  71  111.  250;  Straughan  v.  Indianapolis,  &c.  11.  R.  Co.,  38  lud.  185; 
Sutphen  v.  Sutpheu,  30  Kan.  510;  Loui.'^ville,  &c.  R.  R.  Co.  v.  Offutt,  99  Ky.  427  ; 
Story  V.  Story  (Ky.),  61  S.  W.  Rep.  279,  62  S.  W.  Rep.  865;  Walker  r.  Metropolitan 
Ins.  Co.,  56  Me.  371;  Baltimore  Breweries  Co.  v.  Callahan,  82  Md.  106;  Carnig  y. 
Carr,  167  Mass.  544;  Wiebeler  y.  Milwaukee  Ins.  Co.,  30  Minn.  464;  Harring*-on  r. 
Kansas  City  R.  R.  Co.,  60  Mo.  App.  223 ;  Boggs  v.  Pacific  Laundry  Co  ,  86  Mo.  App. 
616;  Powder  River  Co.  v.  Lamb,  38  Neb.  339;  Gault  v.  Brown,  48  N.  H.  183  ;  Plimp- 
ton V.  Curtiss,  15  Wend.  336  ;  Trustees  v.  Brooklyn  Fire  Ins.  Co  ,  19  N.  Y.  305  ;  Blake 
V.  Voigt,  134  N.  Y.  69  ;  Randall  v.  Turner,  17  Ohio  St.  262  ;  Blakeney  v.  Goode,  .30 
Ohio  St.  350  ;  Jones  v.  Pouch,  41  Ohio  St.  146  ;  Hodges  v.  Richmond  Mfg.  Co.,  9  R.  I. 
482 ;  Seddon  v.  Rosenbaum,  85  Va.  928,  ucc. 

Dobson  r.  Collis,  1  H.  &.  N.  81  ;  Meyer  v.  Robert.s,  46  Ark.  80;  Wilson  v.  Ray,  13 
Ind,  1  ;  Goodrich  v.  Johnson,  66  Ind.  258  ;  Carney  v.  Mosher,  97  Mich.  554 ;  Mallett 
V.  Lewis,  61  Miss.  105 ;  Biest  v.  Ver  Steeg  Shoe  Co.,  70  S.  W.  Rep.  1081  (Mo.  App.) ; 
Shute  V.  Dorr,  5  Wend.  204  ;  Day  v.  New  York  Central  R.  R.  Co.,  51  N.  Y.  583,  89 
N.  Y.  616  ;  Izard  v.  Middleton,  1  Desaus,  116 ;  Jones  v.  McMichael,  12  Rich.  L.  176  ; 
Deaton  v.  Tennessee  Coal  Co.,  12  Heisk.  650,  contra.  See  also  Buhl  v.  Stephens, 
84  Fed.  Rep.  922  ;  Swift  v.  Swift,  46  Cal.  266  ;  Butler  v.  Shehan,  61  111.  App.  561. 


576  DOYLE   V.   DIXON.  [CHAP.   IV. 


t^N^^ 


N  JOHN  DOYLE  v.  JOHN  DIXON. 

Supreme  Judicial  Court  of  Massachusetts,  September  Term,  1867. 

[Reported  in  97  Massachusetts,  208.] 


Contract  for  breach  of  an  agreement  by  the  defendant  not  to  go 
into  the  grocery  business  in  Chicopee  for  five  years. 

At  the  new  trial  in  the  superior  court,  before  Rockwell,  J.,  after  the 
decision  reported  12  Allen,  576,  it  appeared  in  evidence  that  the  de- 
fendant was  a  grocer  at  Chicopee,  and  that  on  November  19,  1864,  he 
and  tlie  plaintiff  entered  into  an  agreement  and  signed  a  memorandum 
thereof  in  writing,  by  which  it  was  provided  that  on  December  1  ensu- 
ing the  defendant  would  transfer  to  the  plaintiff  his  stock  of  goods, 
and  would  lease  to  the  plaintiff  his  shop  for  five  years,  at  an  agreed 
rent,  receiving  from  the  plaintiff  the  market  value  of  the  stock,  and 
five  hundred  dollars  besides  as  bonus,  and  that  if  either  party  should 
"•back  out"  he  should  forfeit  to  the  other  two  hundred  dollars. 

It  appeared  also  that  on  November  21  the  plaintiff  went  to  the 
defendant's  shop  and  said  that  some  of  his  family  were  sick  at  North 
Brook  field  and  he  wanted  to  go  home,  and  would  like  to  take  the  lease 
at  once  and  "'settle  up  the  whole  business,"  and  the  defendant  agreed 
to  do  so,  and  proposed  that  they  should  go  to  an  attorney's  oflSce  for 
the  lease  to  be  drawn.  One  witness  testified  that,  during  this  conver- 
sation, "the  defendant  said  he  had  some  flour  coming,  and  asked  if 
the  plaintiff  would  take  it  of  him  ;  and  the  plaintiff  said  he  did  not 
want  it,  that  he  had  not  much  capital  and  it  would  not  be  convenient 
to  take  it ;  and  the  defendant  said,  Will  you  give  me  the  privilege  of 
selling  it?  and  the  plaintiff  said.  Yes;  and  the  defendant  thanked  him 
for  it  and  said  he  would  not  trouble  him  b}'  going  into  business  in  five 
years."  The  plaintiff  himself  testified  that  the  defendant  said,  "  I 
have  a  lot  of  flour  coming  ;  if  you  don't  want  to  buy  it,  will  you  give 
me  the  privilege  to  sell  it?"  that  he  replied,  "Yes;"  and  that  the 
defendant  then  said,  "  If  you'll  let  me  sell  the  flour  it  is  all  I  want, 
and  I  shall  not  trouble  you  in  the  grocery  business  in  Chicopee  in  five 
3-ears." 

It  appeared  further  that  the  parties  then  went  to  an  attorney's  oflSce, 
and  that,  while  the  lease  was  in  preparation,  the  plaintiff  asked  if  it 
would  not  be  well  to  mention  in  it  that  the  defendant  was  not  to  go 
into  the  business  in  Chicopee  for  five  years,  and  the  defendant  said  it 
would  be  foolish,  and  the  attorne}'  said  that  there  was  no  need  of  it; 
that  the  parties  agreed  that  the  lease  thus  drawn  should  be  deposited 
with  the  parish  priest ;  and  that  a  day  or  two  before  December  1  the 
plaintiff  paid  the  bonus  of  five  hundred  dollars,  and  on  or  before  that 

1  Only  so  much  of  the  case  is  printed  as  relates  to  the  Statute  of  Frauds- 


SECT.    I.]  DOYLE   V.   DIXON.  577 

day  all  the  other  stipulations  of  the  memorandum  signed  on  November 
19  were  fully  performed  by  the  parties  respectively. 

It  was  also  in  evidence  that  on  May  15,  1866,  the  defendant  did 
enter  into  the  grocery  business  in  Chicopee,  and  continued  in  it  to  the 
time  of  the  commencement  of  this  action  on  August  15  following. 

The  plaintiflF  claimed  his  right  of  action  onl}-  upon  and  by  virtue  of 
the  agreement  of  November  21  ;  whereupon  the  defendant  requested 
the  judge  to  rule  that  he  could  not  recover  upon  an  oral  agreement  not 
to  go  into  the  grocery-  business  in  Chicopee  within  five  years,  because 
such  agreement  was  not  to  be  performed  within  one  year  from  the 
making  thereof  and  was  within  the  statute  of  frauds ;  but  the  judge 
ruled   the  contrary'. 

The  defendant  alleged  exceptions. 

A.  Tj.  Soule,  for  the  defendant. 

G.  M.  Stearns,  for  the  plaintiff. 

Gray,  J.  It  is  well  settled  that  an  oral  agreement  which  according 
to  the  exi)ression  and  contemplation  of  the  parties  mav  or  may  not  be 
fully  performed  within  a  3'ear  is  not  within  that  clause  of  the  statute 
of  frauds  which  requires  any  "  agreement  not  to  be  performed  within 
one  year  from  the  making  thereof"  to  be  in  writing  in  order  to  main- 
tain an  action.  An  agreement  therefore  which  will  be  completel}"  per- 
formed according  to  its  terms  and  intention  if  either  party  should  die 
within  the  year  is  not  within  the  statute.  Thus  in  Peters  v.  West- 
borough,  19  Pick.  364,  it  was  held  that  an  agreement  to  support  a  child 
until  a  certain  age  at  which  the  child  would  not  arrive  for  several  \ears 
was  not  within  the  statute,  because  it  depended  upon  the  contingency 
of  the  child's  life,  and,  if  the  child  should  die  within  one  3'ear,  would 
be  full}'  performed.  On  the  other  hand,  if  the  agreement  cannot  be 
completely'  performed  within  a  year,  the  fact  that  it  may  be  terminated, 
or  further  performance  excused  or  rendered  impossible,  b}'  the  death 
of  the  promisee  or  of  another  person  within  a  3'ear,  is  not  sufficient  to 
take  it  out  of  the  statute.  It  was  therefore  held  in  Hill  v.  Hooper, 
1  Gray,  131,  that  an  agreement  to  emplo}'  a  bo}-  for  five  years  and  to 
pay  liis  father  certain  sums  at  stated  periods  during  that  time  was 
within  the  statute  ;  for  although  by  the  death  of  the  bo}-  the  services 
which  were  the  consideration  of  the  promise  would  cease,  and  the 
promise  therefore  be  determined,  it  would  certainh' not  be  completel\' 
performed.  So  if  the  death  of  the  promisor  within  the  year  would 
merely  prevent  full  performance  of  the  agreement,  it  is  within  the 
statute  ;  but  if  his  death  would  leave  the  agreement  completelv  per- 
formed and  its  purpose  full}^  carried  out,  it  is  not.  It  has  accordinglv 
been  repeatedl3'  held  by  this  court  that  an  agreement  not  hereafter  to 
carr\'  on  a  certain  business  at  a  particular  place  was  not  within  the 
statute,  because,  being  only  a  personal  engagement  to  forbear  doing 
certain  acts,  not  stipulating  for  anything  be3'ond  the  promisor's  life, 
and  imposing  no  duties  upon  his  legal  representatives,  it  would  be  fully 
performed  if  he  died  within  the  3"ear.     L3'on  v.  King,  11  Met.  411  ; 

VOL.   I. — 37 


578  CHERRY   V.   HEMING   &    NEEDHAM.  [CHAP.   IV. 

Worth}'  V.  Jones,  11  Gray,  168.  An  agreement  not  to  engage  in  a 
certain  kind  of  business  at  a  particnlar  place  for  a  speciGed  number  of 
years  is  within  tlie  same  principle  ;  for  whether  a  man  agrees  not  to 
do  a  thing  for  his  life,  or  never  to  do  it,  or  onl}-  not  to  do  it  for  a 
certain  number  of  years,  it  is  in  either  form  an  agreement  by  which 
he  does  not  promise  that  anything  shall  be  done  after  his  death,  and 
the  performance  of  which  is  therefore  completed  with  his  life.  An 
agreement  to  do  a  thing  for  a  certain  time  may  perhaps  bind  the 
promisor's  representatives,  and  at  any  rate  is  not  performed  if  he  dies 
within  that  time.  But  a  mere  agreement  that  he  will  himself  refrain 
from  doing  a  certain  thing  is  full}'  performed  if  he  keeps  it  so  long  as 
he  is  capable  of  doing  or  refraining.  The  agreement  of  the  defendant 
not  to  go  into  business  again  at  Chicopee  for  five  jears  was  therefore 
not  within  the  statute  of  frauds. 

MccejMons  overruled} 


CHERRY  V.    HEMING   &   NEEDHAM. 

In  the  Exchequer,  December  5,  1849. 

[Reported  in  4  Exchequer,  631.] 

This  was  an  action  of  covenant  on  an  indenture,  dated  the  31st  of 
March,  1836,  whereby  the  plaintiff  assigned  certain  letters  patent  to 
the  defendants,  who  covenanted  to  pay  the  plaintiff  840/.,  by  instal- 
ments extending  over  several  years,  subject  to  a  proviso,  that  if,  at  the 
expiration  of  twelve  months  from  the  date  of  the  indenture,  the 
defendants  should  not  approve  of  the  working  of  the  patent,  and 
should  give  notice  of  their  disapprobation,  and  of  their  intention  to 
sell  the  patent,  then  the  payment  of  the  first  instalment  should  be 
suspended  ;  and  if,  having  given  such  notice,  the  defendants  should 
within  six  months  sell  the  patent,  then  the  covenant  should  cease  and 
determine.     The  defendants  pleaded  non  est  factum.. 

At  the  trial,  before  Platt,  B.,  at  the  Middlesex  Sittings  after  Easter 
Term,  1849,  it  appeared  that  the  defendant  Needham  had  executed  the 
deed,  and  there  was  the  signature  to  it  of  all  the  parties,  except  that 
of  the  defendant  Heming.  There  was,  however,  a  seal  at  the  foot  of 
the  deed  for  each  party,  being  the  seal  ordinaril}'  used  in  the  office 
of  the  plaintiff's  attorney  who  prepared  the  deed,  and  who  had  attested 
the  execution  of  the  defendant  Needham.  The  deed  was  produced  out 
of  the  custody  of  Heming.  The  defendants  had  endeavored  to  work 
the  patent,  but,  being  dissatisfied  with  it,  sent  the  following  notice  in 
the  handwriting  of  the  defendant  Heming,  and  signed  by  both  the 
defendants :  — 

1  Witter  V.  Gottschalk,  5  Ohio  Dec.  77,  25  Ohio  St.  76,  contra.  Compare  O'Neal 
V.  Hines,  145  Ind.  32. 


SECT.   I.]  CHERFwY    V.   HEIVIIXG   &   NEEDHAM.  579 

"  In  pursuance  and  by  virtue  of  a  proviso  in  that  behalf,  contained  in  an 
indenture  bearing  date  the  31st  of  March,  1836,  and  made  between  Elizabeth 
Cherry  of  the  first  part,  George  Wlieldon  of  the  second  part,  John  Ratliff  of 
the  third  part,  and  the  undersigned  Dempster  Heming  and  Joseph  Smith 
Needham  of  the  fourth  part,  We,  the  said  Dempster  Heming  and  Joseph 
Smith  Needham,  do  hereby  give  you  notice  that  we  do  not  approve  of  the 
working  and  exercising  of  the  letters  patent  and  invention  assigned  by  the 
said  indenture  to  us;  and  we  do  further  give  you  notice,  that  it  is  our  inten- 
tion bona  fide  to  sell  or  otherwise  duly  dispose  of  the  said  letters  patent  au<l 
premises,  within  six  calendar  months  after  the  date  of  this  notice,  in  any 
manner,  to  any  person  or  persons  willing  to  purchase  the  same,  for  the  best 
price  in  money  that  can  be  reasonably  obtained  for  the  same ;  and  we  do 
further  give  you  notice,  that  we  shall  pay,  retain,  and  apply  the  money  to 
arise  from  such  sale  in  manner  directed  in  and  by  the  said  indenture." 

It  was  objected,  that  there  was  no  evidence  of  the  execution  of  the 
deed  in*  the  defendant  Heming ;  but  the  learned  Judge  ruled  that  there 
was  evidence  for  the  jury.  It  was  also  objected,  that  this  was  a  con- 
tract within  t!ic  4th  section  of  the  Statute  of  Frauds,  29  Car.  11.  c.  2, 
and  onglit,  therefore,  to  have  been  signed  by  the  defendant  Heming. 
His  Lordship  was  of  opinion  that  a  deed  was  not  within  the  meaning 
of  that  statute,  and  a  verdict  was  found  for  the  plaintiff. 

Parke.  B.  The  rule  must  be  discharged.  With  respect  to  the 
question,  whetlier  this  is  an  instrument  within  the  Statute  of  Frauds, 
I  think  that  Donellan  v.  Read  is  an  answer;  and,  in  my  opinion,  that 
case  was  rightly  decided.  The  question  turns  upon  the  construction 
of  the  words  "  not  to  be  performed ;  "  and  in  Donellan  v.  Read  the 
Court  considered  that  those  words  meant,  not  to  be  performed  on 
either  side,  and  did  not  include  cases  where  the  contract  was  per- 
formed on  the  one  side.  That  was  certainly  in  accordance  with  the 
opinion  expressed  by  Lord  Tenderden  in  Bracegirdle  v.  Heald.  If 
Donellan  v.  Read  had  been  simply  a  decision  on  a  doubtful  point,  we 
ought  to  be  botmd  by  it,  unless  manifestly  wrong ;  and  the  learned 
observations  of  Mr.  Smith  are  not  sufficient  to  induce  me  to  say  that 
it  was  wrongly  decided.  The  case  of  Peter  v.  Compton,  which  he 
relies  on,  does  not  support  his  view.  All  that  can  be  said  of  that  case 
is,  that,  there  being  two  answers  to  the  Statute  of  Frauds,  Lord  Holt 
gives  one  which  is  satisfactory,  namely,  that  the  agreement  might  have 
been  performed  within  the  year.  It  is  unnecessary  to  give  an  opinion 
on  the  other  points;  but  I  must  own  that  I  think  a  deed  is  not  within 
the  Statute  of  Frauds,  because,  in  my  opinion,  that  statute  was  never 
meant  to  apply  to  the  most  solemn  instrument  which  the  law  recognizes. 
I  also  think  that  the  notice  which  refers  to  the  deed  would,  if  it 
were  necessary  to  have  recourse  to  it,  be  a  sufficient  note  or  memo- 
randum within  the  statute.  I  do  not  mean  to  be  concluded  by  this 
expression  of  my  opinion  on  the  two  latter  points,  but  onl}'  to  state 
my  present  impression. 

Alderson.  B.  —  I  also  think  that  Donellan  v.  Read  is  good  law ;  but 
even  if  it  were  not,  this  case  would  not  require  its  assistance,  because, 


680  DIETRICH   V.    HOEFELMEIR.  [CHAP.    IV. 

tliis  being  the  case  of  a  deed,  it  must  be  taken  to  tiave  been  sealed 
by  the  parties  in  due  form,  and  the  statute  does  not  apply  to  such 
instruments,  but  only  to  parol  agreements. 

lloLFE,  B.  I  am  strongly  inclined  to  think  that  the  statute  does  not 
extend  to  deeds,  l)ecause  its  requirements  would  he  satistied  by  the 
parties  putting  their  mark  to  the  writing.  The  object  of  the  statute 
was  to  prevent  matters  of  importance  from  resting  on  the  frail  testi- 
mony of  memory  alone.  Before  the  Norman  time,  signature  rendered 
the  instrument  authentic.  Sealing  was  introduced  because  the  people 
in  general  could  not  write.  Then  there  arose  a  distinction  between 
what  was  sealed  and  what  was  not  sealed,  and  that  went  on  until 
societ}'  became  more  advanced,  when  the  statute  ultimately  said  that 
certain  instruments  must  be  authenticated  b}'  signature.  That  means, 
that  such  instruments  are  not  to  rest  on  parol  testimon}''  only,  and  it 
was  not  intended  to  touch  those  which  were  already  authenticated  by 
a  ceremony  of  a  higher  nature  than  a  signature  or  a  mark. 

Platt,  B.,  concurred. 

Hule  discharged.^ 


"'T  DIETRICH   ET   AL   V.   HOEFELMEIR. 

K^W  Michigan  Supreme  Court,  July  19,   1901. 

[Reported  in  128  Michigan,  145.] 

MooRE,  J.  This  is  an  action  of  trover  brought  to  recover  the  value 
of  40  sheep  claimed  to  have  been  converted  by  the  defendant  to  his 
own  use  on  the  6th  day  of  January,  1900.  The  declaration  was  in  the 
usual  form  of  declarations  in  trover.  The  plea  was  the  general  issue, 
with  notice  of  a  contract  between  the  parties  hy  which  the  defendant 
took  20  sheep  from  the  plaintiffs,  to  double  in  four  years  from  the  6th 
day  of  Januar}-,  1896,  and  also  a  notice  of  tender.  Some  time  in  the 
mouth  of  December,  1895,  one  of  the  plaintiffs  met  the  defendant  at 
his  i>lace  of  business  in  Ravenna,  when  the  defendant  wanted  to  know 
if  the  plaintiff  had  any  sheep  to  sell.  Plaintiff  Leo  Dietrich  said  he 
had  no  sheep  to  sell,  but  would  let  defendant  have  20  sheep  on  shares, 
to  double  in  four  years,  provided  it  was  satisfactory  to  his  brother 
Jacob.  Soon  after  that  date,  and  on  the  6th  day  of  January,  1896, 
the  defendant  went  to  the  place  of  the  plaintiffs  to  get  the  sheep,  when 
it  was  agreed  between  the  plaintiffs  and  defendant  as  follows  :  — 

"  Plaintiffs  agreed  to  let  the  defendant  have  20  sheep,  all  ewes,  and 
all  with  lamb,  all  good  size  and  good  grade  ;  the  defendant  to  take  said 
sheep  to  double  in  four  years  ;  and  return  at  the  end  of  four  years 
40  ewe  sheep,  all  to  be  with  lamb,  and  the  same  grade  or  quality  of 
sheep,  to  be  delivered  by  the  defendant  to  the  plaintiffs  at  his  (defend- 
ant's) farm." 

1  Compare  Milsoin  v.  Stafford,  80  L.  T.  590. 


SECT.    I.]  JDii-TRICH   V.   HOEFELMEIR.  581 

The  sheep  delivered  were  from  2  to  6  years  old.  Defendant  was 
to  return  sheep  not  30unger  than  2  nor  more  than  6  jears  old.  A 
demand  was  made  upon  him  for  the  sheep.  Upon  his  refusal  to 
deliver  them,  this  suit  was  brought. 

At  the  conclusion  of  the  testhnony  for  the  plaintiffs,  counsel  for 
defendant  moved  the  court  '*"  to  direct  a  verdict  in  favor  of  the 
defendant  — 

'•  Fivftt,  upon  the  ground  that  the  contract  testified  to  by  the  wit- 
nesses for  the  plaintiffs  is  a  verbal  contract,  and  not  one  to  be  per- 
foniied  within  a  jear  by  the  defendant,  and  therefore  within  the  statute 
of  frauds,  so  called  ; 

"  Second^  upon  the  ground  that  tlie  transaction  on  January  6th  and 
prior  thereto  between  these  parties  concerning  tliese  sheep,  as  testi- 
fied to  by  the  plaintiffs'  witnesses,  was  a  sale  of  the  sheep,  and  not  a 
bailment,  and  that  the  title  passed  to  the  defendant,  and  the  plaintiffs 
have  no  title  or  interest  in  the  specific  sheep  for  which  they  seek  to 
recover  in  this  action  of  trover ;  and, 

"  Third  (which  is  covered  in  that,  perhaps),  that  an  action  of 
trover  will  not  lie.     If  any  action  would  lie,  it  would  be  an  action  of 

The  trial  judge  was  of  the  opinion  that  the  contract  was  within  the 
statute  of  frauds  and  was  absolutely  void,  and  directed  a  verdict  for 
the  defendant.     The  case  is  brought  here  by  writ  of  error. 

Cotmsel,  in  their  brief,  sa}' : 

"  The  position  of  defendant  may  be  stated  as  follows  :  — 

"1.  The  contract  on  the  part  of  defendant  to  deliver  to  plaintiffs 
40  sheep  at  the  end  of  four  years  was  not  in  writing,  and  by  its  terms 
was  not  to  be  performed  within  one  year,  and  therefore  was  within  the 
statute  of  frauds.  The  contract  on  the  part  of  plaintiffs  to  deliver 
to  defendant  20  sheep  was  to  be  performed  presently,  and  was  fully 
executed,   and  therefore  was  not  within  the   statute  of  frauds. 

"2.  The  transaction  constituted  a  sale,  and  not  a  bailment,  of 
the  sheep  by  plaintiffs  to  the  defendant. 

"  3.  The  plaintiffs  have  mistaken  the  form  of  their  action.  While 
they  might  have  recovered  upon  the  appropriate  common  counts  in  an 
action  of  assumpsit,  the}'  cannot  recover  in  the  present  action  of 
trover." 

We  think  this  position  is  not  tenable.  Were  it  not  for  the  statute 
of  frauds,  this  contract  would  not  be  void  ;  and,  were  it  completely 
executed,  it  would  be  taken  out  of  the  statute,  so  that  neither  part}' 
could  question  its  validitv.  Browne,  Stat.  Frauds  (5th  ed.),  §  116. 
Tiie  plaintiffs  are  not  invoking  the  aid  of  the  statute  to  avoid  the 
contract.  That  is  done  by  defendant,  who  has  agreed  by  parol  to 
do  something  which  lie  now  refuses  to  do  because  the  contract  was  not 
made  in  writing,  after  tlie  other  parties  have  performed  their  agree- 
ment. The  defendant  cannot  separate  an  ngrecMnent,  which  all  the 
piirtios  regarded  as  an  entire  one.  into  two  pnvt^.  :ind  say  that  one  of 


582  DIETRICH   V.   HOEFELlMEm.  [CHAP.   IV. 

these  parts  was  performed  within  a  year,  and  therefore  makes  a  complete 
contract,  by  which  defendant  has  obtained  title  to  the  propertj',  while, 
as  to  the  other  part  of  the  contract,  by  which  defendant  was  to  return 
twice  the  number  of  the  sheep  which  he  had  received,  that  as  that 
agreement  was  not  to  be  performed  within  a  year,  and  has  never  in 
fact  been  performed,  it  is  void  because  not  in  writing,  and  therefore 
he  will  not  perform  it.  To  allow  this  contention  would  be  to  permit 
the  making  of  a  contract  never  contemplated  by  the  parties. 

Under  the  provisions  of  subdivision  1,  §  9515,  3  Comp.  Laws,  the 
contract  the  parties  undertook  to  make  was  void  because  it  could  not 
be  performed  within  a  year,  and  was  not  in  writing.  The  circuit  judge 
was  right  in  declaring  it  to  be  absolutel}*  void.  Scott  v.  Bush,  26 
Mich.  418,  421  (12  Am.  Rep.  311)  ;  Kelly  v.  Kelly,  54  Mich.  30, 
48  (19  N.  W.  580)  ;  Raub  v.  Smith,  61  Mich.  543,^547  (28  N.  W. 
676,  1  Am.  St.  Rep.  619)  ;  Wardell  v.  Williams,  62  Mich.  50,  62  (28 
N.  W.  796,  4  Am.  St.  Rep.  814) ;  Winner  v.  Williams,  62  Mich.  363, 
366  (28  N.  W.  904).  If  this  is  so,  it  did  not  convey  the  title  of  the 
sheep  to  the  defendant,  but  the  title  remained  with  the  plaintiffs. 
After  the  defendant  has  got  possession  of  the  sheep  belonging  to  plain- 
tiffs b}'  reason  of  a  contract  made  void  bj'  the  statute,  he  cannot  invoke 
the  aid  of  the  statute  to  defeat  the  title  of  the  plaintiffs,  and  say  the 
same  contract  confers  upon  himself  title  to  the  property.  The  law  is 
not  so  unfair  and  unjust  as  that  would  be.  The  title  to  the  sheep, 
then,  remaining  in  the  plaintiffs,  and  the  defendant,  without  the  con- 
sent of  the  plaintiffs,  having  sold  them,  and  having,  upon  demand 
made,  refused  to  return  them,  the  plaintiffs  were  entitled  to  maintain 
this  action. 

Judgment  reversed  and  new  trial  ordered. 

The  other  justices  concurred.^ 

1  Berry  v.  Graddy,  1  Met.  (Ky.)  553  ;  Marcy  v.  Marcy,  9  Allen,  8  ;  Kelley  v.  Thomp- 
son, 175  Mass.  427  ;  Buckley  v.  Buckley,  9  Ner.  373  ;  Bartlett  v.  Wheeler,  44  Barb. 
162;  Broadwell  i'.  Getman,  2  Denio,  87  ;  Parks  v.  Francis,  50  Vt.  626,  ace.  See  also 
Reinheimer  v.  Carter,  31  Ohio  St.  579,  587. 

Rake's  Adm.  r.  Pope,  7  Ala.  161  ;  Manning  v.  Pippen,  95  Ala.  537,  541  ;  Johnsou 
V.  Watson,  1  Ga.  348;  Eraser  v.  Gates,  118  111.  99,  112;  Haugh  v.  Blythe,  20  Ind.  24; 
Piper  V.  Fosher,  121  Ind.  407;  Smalley  v.  Greene,  52  la.  241  ;  Dant  v.  Head,  90  Ky. 
255 ;  Blantou  v.  Knox,  3  Mo.  342  ;  Bless  i;.  Jenkins,  129  Mo.  647 :  Marks  v.  Davis,  72 
Mo.  App.  557  ;  Blanding  v.  Sargent,  33  N.  H.  239 ;  Little  v.  Little,  36  N.  H.  224, 
Perkins  v.  Clay,  54  N.  H.  518;  Durfee  v.  O'Brien,  16  R.  I.  213;  Gee  v.  Hicks, 
1  Rich.  Eq.  5 ;  McClellan  v.  Sanford,  26  Wis.  595 ;  Washburn  v.  Dosch,  68  Wis.  436, 
tanira.     See  also  Sheehy  v.  Adarene,  41  Vt.  541. 


SECT.   I.]  BILLINGTON  V.   CAHLLL.  583 

JESSE  W.  BILLINGTON,  Respondent,  v.  MICHAEL  CAHILL, 

Appellant, 

New  York  Supreme  Court,  January  Term,  1889. 

[Reported  in  51  Hun,  132.] 

Martin,  J.  The  defendant  dismissed  the  plaintiff  from  his  service 
on  the  26th  day  of  November,  1885.  The  plaintiff  claims  that  such 
discharge  was  wrongful  in  that  it  was  a  breach  of  the  contract  between 
them  by  which  the  defendant  employed  the  plaintiff  for  the  period  of 
one  3'ear  from  April  1,  1885.  It  was  to  recover  damages  for  such 
alleged  breach  of  contract  that  this  action  was  brought. 

In  his  complaint  the  plaintiff  alleges  that  on  or  about  the  month  of 
March,  1885,  the  plaintiff  and  defendant  entered  into  an  agreement 
whereby  the  plaintiff  agreed  to  work  for  the  defendant  at  farm  work 
for  the  term  of  one  3'ear,  to  commence  on  the  1st  day  of  April,  1885, 
and  expire  on  the  31st  day  of  March,  1886,  at  the  stipulated  price  of 
thirty  dollars  per  month,  pa^-able  monthh'  during  that  time;  that  the 
plaintiff  was  also  to  have  the  use  of  a  certain  house  and  garden  situated 
on  defendant's  farm  ;  to  have  a  certain  quantity  of  milk,  a  certain  pro- 
portion of  the  chickens  and  eggs  produced  on  the  premises,  a  team  to 
draw  his  coal  or  fuel,  half  of  a  pig  and  what  fruit  was  necessar}'  for  his 
famil}'  use.  The  defences  interposed  b^'  the  defendant  were:  1.  A 
substantial  denial  of  the  allegations  of  the  complaint.  2.  That  the 
plaintiff  had  been  fully  paid.  3.  That  the  plaintiff  was  properl}'  dis- 
charged for  not  complying  with  the  conditions  of  his  employment,  and 
for  not  faithfully  discharging  the  duties  of  his  service. 

On  the  trial  the  defendant  moved  for  a  nonsuit  upon  the  ground  that 
the  contract  upon  which  the  plaintiff  sought  to  recover  was  void  under  the 
statute  of  frauds,  and  that  the  plaintiff  was  properly  discharged  for  dis- 
obeying defendant's  order.  This  motion  was  denied  and  the  defend,  nt 
duly  excepted.  The  correctness  of  this  decision  is  challenged  b}-  the 
appellant,  and  presents  the  questions  :  1.  Whether  the  contract  be- 
tween the  parties  was  within  the  statute  of  frauds  and  consequently 
void.     2.  Whether  the  plaintiff  was  improperh'  discharged. 

That  the  agreement  between  tlie  parties  was  in  writing,  or  that  there 
was  any  note  or  memorandum  thereof,  is  not  claimed  ;  that  it  was  made 
in  the  month  of  March,  and  was  for  the  employment  of  the  plaintiff  for 
the  term  of  one  \'ear,  to  commence  on  the  1st  day  of  April,  1885,  was 
alleged  in  the  complaint  and  proved  b}'  the  plaintiff  on  the  trial ;  so 
that  upon  the  plaintiff's  own  showing,  the  agreement  was  for  his  em- 
ployment b^'  the  defendant  for  the  full  term  of  one  year,  to  commence 
at  a  future  day.  Hence,  the  question  is  presented,  whether  the  con- 
tract was  void  as  being  within  the  provisions  of  the  statute  of  frauds, 
which  declares  that  every  agreement  that  by  its  terms  is  not  to  be  per- 
formed within  one  3'ear  from  the  making  thereof  shall  be  void,  unless 
such  agreement  or  some  note  or  memorandum  thereof  be  in  writing  and 


584  BILLINGTON   V.    CAHILL.  [CHAP.   IV. 

subscribed  b}'  the  part}-  to  be  charged  therewith.  3  R.  S.  (7th  ed.) 
2327,  §  2. 

The  appellant  contends  that  the  agreement  between  the  parties, 
as  alleged  and  proved  by  the  plaintiff,  was  within  the  statute  and  void, 
and  that  the  court  erred  in  denying  the  defendant's  motion  for  a  non- 
suit. It  seems  to  be  admitted  by  the  respondent  that  if  the  agreement 
was  made  prior  to  the  31st  day  of  March,  1885,  it  was  void  under  the 
statute  of  frauds  ;  but  he  claims  that  there  was  evidence  sufficient  to 
justif}'  the  jury  in  finding  that  the  agreement  was  made  on  tlie  thirt}'- 
first  of  March  ;  that  it  so  found,  and,  therefore,  the  agreement  could 
have  been  fully  performed  within  one  year  from  the  making  thereof, 
and  was  not  within  the  statute. 

An  examination  of  the  plaintiff's  evidence  in  this  case  tends  to  show 
quite  conclusiveh'  that  the  agreement  was,  in  fact,  made  several  da3'8 
before  the  31st  of  JNIarch,  1885.  He  testified  that  he  had  three  con- 
versations with  the  defendant ;  that  at  the  first  conversation,  which  he 
testified  was  about  the  tenth  of  March,  the  defendant  stated  to  him  the 
price  which  he  would  pay  and  the  things  he  would  furnish  the  plaintiff 
if  employed  by  him  ;  that  upon  the  second  occasion,  which  was  several 
days  before  the  first  of  April,  he  told  the  defendant  that  he  had  made 
up  his  mind  to  accept  his  offer,  but  there  were  a  few  things  which  he 
wanted  to  talk  about,  which  were  talked  over  and  agreed  upon  ;  that 
subsequently,  upon  the  thirty-first  daj-  of  March,  and  after  he  had 
moved  all  his  goods  on  to  the  defendant's  premises,  save  the  last  load, 
he  and  the  defendant  had  another  conversation  about  the  contract ;  that 
he  told  the  defendant  they  had  better  have  their  contract  understood 
and  have  writings  so  there  would  not  be  any  trouble  about  it;  that  the 
defendant  said  he  did  not  think  they  needed  an}'  writings  ;  that  both 
understood  the  bargain,  and  that  the}-  did  not  have  any.  But  upon 
his  cross-examination  the  plaintiff  testifies,  in  substance,  that  the  terms 
of  the  agreement  between  them  were  restated  by  the  parties  on  that 
da}'.  While  doubting  the  sufficiency  of  that  evidence  to  show  that  the 
contract  was  made  on  that  day  (Oddy  v.  James,  48  N.  Y.  685 ;  Wana- 
maker  v.  Rhomer,  23  Weekly  Dig.  60  ;  SnelUng  v.  Lord  Huntingfield, 
1  C.  M.  &  R.  20),  still,  it  is  possible,  if  the  contract  was  valid  if 
made  then,  that  there  was  sufficient  evidence  to  justify  the  submis- 
sion of  that  question  to  the  jury,  and  to  uphold  its  finding  that  the  con- 
tract was  made  at  that  time.  If,  however,  we  assume  that  the  contract 
between  the  parties  was  completed  on  March  thirty-first,  then  the  in- 
quiry is  presented  whether  a  contract  for  the  employment  of  another 
for  the  term  of  one  year,  to  commence  on  the  following  day,  is  within 
the  foregoing  provision  of  the  statute  of  frauds.  The  respondent  con- 
tends that  it  is  not,  and  cites,  as  authorities  sustaining  his  contention, 
the  cases  of  Cawthorne  v.  Cordrey,  13  C.  B.  (n.  s.)  406  ;  Dickson  v. 
Frisbee,  52  Ala.  165  ;  and  McAleer  z'.  Corning,  50  Super.  Ct.  (J.  &  S.), 
63.  A  careful  examination  of  the  case  of  Cawthorne  v.  Cordrey  dis- 
closes that  the  doctrine  contended  for  was  not  held  in  that  case.    While 


SECT.    I.]  BTLLINGTON   V.    CAHILL.  585 

the  head  note  is  to  the  effect  that  a  contract  for  a  3'ear's  service  made 
on  the  twenty-fourth  of  March,  to  commence  on  the  twenty-fifth  of  the 
same  month,  is  not  void  by  the  statute  of  frauds,  still,  when  the  case 
is  examined  it  will  be  seen  that  all  that  was  decided  was  that  there  was 
evidence  in  that  case  upon  which  the  jur}'  might  find  that  the  contract 
was  made  on  Monda}-  for  service  for  a  year  from  that  day,  and  that  it 
was  to  be  performed  within  a  year  from  that  time.  Britain  v.  Rossiter, 
L.  R.  11  Queen's  Bench  Div.  123,  124. 

In  the  case  of  Dickson  v.  Frisbee  the  doctrine  contended  for  was 
held  b}'  the  Supreme  Court  of  Alabama,  but  the  decision  in  that  case 
was  based  upon  the  case  of  Cawthorne  f.  Cordre}',  and  upon  an  under- 
standing that  that  case  decided  that  a  contract  made  on  one  day  for  a 
year's  service  to  commence  on  the  next,  was  not  within  the  statute. 
As  we  have  seen,  it  was  not  so  held  in  that  case,  hence,  the  Dickson 
case  was  decided  under  a  misapprehension  of  the  decision  in  the  Caw- 
thorne case,  which  ver}'  materially  diminishes  the  importance  of  that 
case  as  an  authority  upon  the  question.  It  was  held  in  the  McAleer 
case  that  if  a  contract  of  hiring  is  made  for  one  year  to  begin  in 
prcesenti,  although  no  services  are  to  be  performed  by  the  emploj'ee 
until  a  future  day,  the  contract  is  operative  from  the  day  of  its  making, 
and  the  year  ends  with  the  endings  of  one  year  from  that  day,  and  such 
a  contract  is  not  within  the  statute.  This  examination  of  the  authori- 
ties cited  b}'  the  respondent  shows  that  none  of  the  cases  relied  upon 
by  him  uphold  the  doctrine  for  which  he  contends,  except  the  case  of 
Dickson  v.  Frisbee,  and  that  that  case  was  decided  upon  a  misappre- 
hension of  the  decision  in  the  Cawthorne  case.  On  the  other  hand, 
the  authorities  cited  by  the  appellant  seem  to  hold  the  doctrine  quite 
distinctly  that  such  a  contract  is  within  the  statute  and  void. 

In  Bracegirdle  v.  Heald,  1  Barn.  &  Aid.  722,  it  was  held  that  a 
contract  for  a  year's  service  to  commence  at  a  subsequent  da}',  being  a 
contract  not  to  be  performed  within  the  fourth  section  of  the  statute  of 
frauds,  must  be  in  writing.  In  that  case  Lord  Ellenborough  said : 
"This  case  falls  expressly  within  the  authoritv  of  Bojdell  v,  Drummond, 
11  East,  142,  and  if  we  were  to  hold  that  a  case  which  extended  one 
minute  be^'ond  the  time  pointed  out  by  tiie  statute  did  not  fall  within  its 
prohibition,  I  do  not  see  where  we  should  stop  ;  for  in  point  of  reason 
an  excess  of  twent}' years  will  equally  not  be  within  the  act.  Such  diffi- 
culties rather  turn  upon  the  policy  than  upon  the  construction  of  the 
statute.  If  a  party  does  not  reduce  his  contract  into  writing  he  runs 
the  risk  of  its  not  being  valid  in  law,  for  the  legislature  has  declared  in 
clear  and  intelligible  terms  that  ever\-  agreement  tliat  is  not  to  be  per- 
formed within  the  space  of  one  year  from  the  making  thereof  shall  be  in 
writing." 

In  Snelling  v.  Lord  Huntingfield,  1  C,  M.  &  R.  20,  where  A,  on 
the  twentieth  of  July,  made  proposals  in  writing  (unsigned),  to  B  to 
enter  his  service  as  bailiff  for  a  year,  and  B  took  the  proposals  and 
"vrent  away,  and  entered  into  A's  service  on  the  twenty-fourth  of  July, 


586  BTLLINGTON   V.    CAHILL.  [CHAP.   IV. 

it  was  held  that  this  was  a  contract  on  the  twentieth,  not  to  be  per- 
formed within  the  space  of  one  year  from  the  making,  and  was  within 
the  fourth  section  of  the  statute  of  frauds. 

In  Levison  v.  Stix,  10  Dal}',  229,  it  was  held  that  an  oral  agree- 
ment made  on  the  thirty-first  day  of  December  for  services  to  be  ren- 
dered for  a  period  of  one  year,  which  was  to  terminate  on  the  thirt3'-first 
day  of  December  of  the  following  3'ear,  was  void  under  the  statute  of 
frauds.  In  delivering  the  opinion  in  that  case,  the  court  sa^'s :  "In 
fact,  it  is  impossible  to  see,  if  the  term  of  service  is  to  commence  at 
any  time  subsequent  to  the  time  of  making  tlie  contract,  and  the  con- 
tract is  for  a  full  year,  how  it  is  possible  that  it  should  be  performed 
within  a  year.  It  is  undoubtedly  the  intention  of  the  statute  to  require 
that  all  contracts  which  are  not  to  be  performed  within  one  year  from 
the  time  of  making  shall  be  in  writing  ;  and,  in  order  that  they  shall  be 
completed  within  the  year,  it  is  absolutely  necessarj'  that  the  time  of 
making  and  the  j'ear  of  performance  must  be  within  the  same  year  ;  and 
if  the  time  of  making  is  to  be  excluded  and  the  time  of  performance  is 
to  be  a  full  3'ear,  the  contract  cannot  be  performed  within  the  year 
within  which  it  was  made." 

In  Sutcliffe  v.  Atlantic  Mills,  13  R.  I.  480,  where  an  oral  contract 
was  made  between  A  and  B  on  August  twentieth,  b3'  which  A  was  to 
enter  B"s  service  for  one  3'ear,  A  to  begin  the  term  of  service  as  soon 
as  he  could,  and  A  began  to  work  for  B  August  twenty-seventh,  it  was 
held  that  the  contract  was  within  the  statute  of  frauds,  being  an  oral 
contract  and  not  to  be  performed  within  a  3"ear,  and  that  an  action  by 
A  against  B  for  a  breach  of  this  contract  could  not  be  maintained. 

In  Wood  on  the  Statute  of  Frauds,  it  is  said  "  a  contract  for  aA'ear's 
service  to  commence  at  a  future  dav,  being  a  contract  not  to  be  per- 
formed  within  a  3'ear  from  the  making  thereof,  is  within  the  statute." 
Sec.  272.  The  same  doctrine  is  laid  down  in  Smith  on  the  Law  of 
Master  and  Servant,  and  Wood  on  Master  and  Servant.  Odd}'  v. 
James,  48  N.  Y.  685  ;  Amburger  v.  Marvin,  4  E.  D.  Smith,  393  ; 
Blanck  v.  Littcll,  9  Daly,  268;  Nones  v.  Homer,  2  Hilt.  116. 

To  hold  that  a  contract  made  on  the  31st  day  of  March  for  service 
for  one  3'ear,  to  commence  on  the  first  da3'  of  April,  was  not  within  the 
statute  of  frauds,  would  be  to  evade  and  not  to  execute  that  statute- 
The  mandate  of  the  statute  is  positive  that  an  agreement  that,  by  itf» 
terms,  is  not  to  be  performed  within  one  year  from  the  making  thereof 
shall  be  void,  unless  it  is  evidenced  by  some  writing  signed  1)3'  the 
part3'  to  be  charged  therewith.  It  is  not  apparent  to  us  how  it  can  be 
fairh'  held  that  a  contract  for  a  full  year's  service  can  be  performed 
within  one  year  from  the  making  thereof,  when  it  was  made  on  a  da3' 
previous  to  the  commencement  of  the  3'ear.  If  this  statute  can  be  thus 
extended  for  one  day,  why  may  it  not  be  extended  indefinitely?  The 
agreement  in  this  case  was  within  the  letter  and  intent  of  the  statute, 
even  if  made  when  claimed  b3'  the  respondent.  The  weight  of  the 
authorities  is  to  that  effect. 


SECT.    I.]  ODELL   V.    WEBENDORFER.  587 

"We  are  of  the  opinion  that  the  agreement,  as  alleged  and  proved  by 
the  plaintiff,  was  within  the  provision  of  the  statute  of  frauds  and  void; 
that  the  trial  court  erred  in  denying  the  defendant's  motion  for  a  non- 
suit made  on  that  ground  ;  and  that  for  such  error  the  judgment  should 
be  reversed.  This  conclusion  renders  it  unnecessar}'  to  examine  the 
other  questions  in  the  case. 

Judgment  and  order  reversed  on  the  exceptions,  and  a  new  trial 
granted,  with  costs  to  abide  the  event. 

PoLLETT  and  Kennedy,  JJ.,  concurred. 

Judgment  and  order  reversed  on  the  exceptions^  and  a  new 
trial  granted  with  costs  to  abide  the  event} 


WILLIAM   D.    ODELL,    Respondent,   v.   HENRY  '^ 

WEBENDORFER,    Appellant. 

Appellate  Division  of  the  New  York  Supreme  Court,  April 

Term,  1900. 

[Reported  in  50  New  York  Supreme  Court,  Appellate  Division,  579.] 

HiRSCHBERG,  J.  The  plaintiff  alleges  that  he  was  hired  by  the 
defendant  on  April  1,  1898,  to  work  his  farm  for  one  year  and  to 
furnish  an  additional  man,  for  which  he  was  to  be  paid  sixty  dollars  a 
month,  and  to  receive  house  rent,  a  horse  once  a  week,  four  quarts  of 
milk  per  da}-,  potatoes,  apples,  and  stable  room.  He  claims  that  he 
was  unlawfull}'  discharged  December  1,  1898,  and  sues  for  his  money 
wages  during  the  remainder  of  the  term,  and  for  the  value  of  the 
"privileges."  The  defendant  denied  that  the  hiring  was  for  a  yea", 
alleged  that  the  discharge  was  for  adequate  cause,  and  pleaded  the 
Statute  of  Frauds. 

The  agreement  for  hiring,  as  stated  by  the  plaintiff,  was  oral,  and 
was  made  in  the  middle  of  March,  1898,  for  a  3'ear,  to  commence 
April  1,  1898.  The  plaintiff  claims  that  the  agreement  was  renewed 
April   1,  1898,  l)ut  his  evidence  would  seem  to  be  limited  to  proof 

1  Dollar  V.  Parkiugton,  84  L.  T.  470,  ace.  See  also  Sprague  v.  Foster,  48  111.  App. 
140;  Shipley  v.  Pattou,  21  lud.  169;  Aiken  v.  Nogle,  47  Kan.  96;  Sanborn  v.  Fire- 
man's Ins.  Co.,  16  Gray,  448. 

A  contract  of  personal  service  for  more  than  a  year  is  generally  held  within  the 
statute  though  the  death  of  the  employee  may  terminate  the  contract  within  the  year. 
Comes  V.  Lamson,  16  Conn.  246;  Kelly  »•.  Terrell,  26  Ga.  551  ;  Tuttle  v.  Swett,  31  Me. 
555;  Hearne  v.  Chadbourne,  65  Me.  302;  Beruier  v.  Cabot  Mfg.  Co.,  71  Me.  506; 
Hill  V.  Hooper,  1  Gray,  131 ;  Freeman  v.  Foss,  145  Mass.  361  ;  Pitcher  v.  Wilson,  5  Mo. 
46;  Biest  v.  Ver  Steeg  Shoe  Company,  70  S.  \V.  Rep.  1081  (Mo.  App.);  Kans.as  City 
R.  R.  Co.  V.  Conlee,  43  Neb.  121  ;  McElroy  v.  Ludlum,  32  N.  J.  Eq.  823  ;  Towusend  v. 
Minford,  48  Hun,  617;  Hillhouse  r.  Jennings,  60  S.  C.  373;  Hinckley  v.  Southgate, 
11  Vt.  428  ;  Lee's  Adm.  v.  Hill.  87  Va.  497 ;  Wilhelm  v.  Hardman,  13  Md.  140.  See 
also  Harris  v.  Porter,  2  Harr.  27. 


588  ODELL   V.   WEBENDORFER.  [CHAP.    IV. 

that  its  terms  were  merel}'  restated,  and  that  no  new  contract  was 
actuall}'  entered  into  on  that  day.  He  said  on  direct  examination  : 
"  Q.  Was  this  talk  the  first  of  April?  A.  We  were  mentioning  over 
what  it  was  alread}'  understood.  Q.  What  was  the  talk?  A.  That 
was  it.  Q.  Did  30U  have  a  similar  talk  with  him  before?  A.  I 
did.  Q.  What  was  the  occasion  of  your  speaking  to  him  that  da}'? 
A.  After  I  made  the  arrangements  with  Mr.  Webendorfer  to  work 
for  him,  I  heard  that  he  did  n't  always  stand  up  to  his  agreements, 
and  I  thought  to  make  myself  safe  I  would  repeat  it  there  on  the 
first  day  of  April,  and  have  an  understanding."  On  cross-examina- 
tion he  said  :  "  Q.  So  that  when  it  came  the  first  of  April  you  had 
no  agreement  to  make  with  Mr.  Webendorfer  at  all?  A.  Only  to 
repeat  the  bargain.  Q.  Answer  the  question.  Did  you  have  any 
further  agreement  with  him,  did  j'ou  have  an}'  further  agreement  or 
contract  on  the  first  day  of  April?  A.  I  did  n't  presume  it  was  neces- 
sary, but  as  I  sa}',  as  I  heard  Mr.  Webendorfer  did  n't  always  stand 
up  to  his  agreements,  I  thought  that  it  was  necessar}-  for  me  to  repeat 
the  contract,  and  see  if  it  was  satis  facto  r}'.  Q.  On  the  first  day  of 
April  you  talked  over  3'our  previous  contract?  A.  Yes,  sir.  Q.  You 
made  no  new  contract?     A.    No,  sir,  just  the  previous  bargain." 

By  the  plaintiffs  own  showing  the  contract  was  not  made  on  the 
first  of  April.  No  contract  was  made  that  day,  but  onh*  the  terms 
of  the  prior  contract  were  restated  by  either  him  or  the  defendant, 
for  the  sake  of  certainty  as  to  the  mutual  obligations.  What  was 
actually  said  on  the  first  of  April  does  not  appear  in  the  case  at  all. 
This  is  not  sufficient  to  take  the  case  out  of  the  operation  of  the 
statute.  A  new  contract  then  made  is  requisite  ;  that  is,  the  former 
contract  should  then  be  expressly  renewed  or  the  employer  cannot 
be  held  bound.  Oddy  v.  James,  48  N.  Y.  685  ;  Berrien  v.  Southack, 
26  N.  Y.  St.  Rep.  932  ;  BilUngton  v.  Cahill,  51  Hun,  132. 

It  was  error  also  to  permit  the  jury  to  include  the  "privileges" 
in  the  assessment  of  damages.  The  plaintiff  made  no  proof  what- 
ever as  to  the  money  value  of  the  privileges,  and  there  was,  there- 
fore, nothing  in  the  case  on  which  the  damages  created  by  their  loss 
could  be  estimated. 

The  judgment  and  order  should  be  reversed  and  a  new  trial  granted. 

All  concurred. 

Judgment  and  order  reversed  and  new  trial  granted^  costs  to 
abide  the  event} 

"  1  On  the  new  trial  the  plaintiff  testified  that  on  the  1st  day  of  April,  1898,  he  had 
a  separate  and  distinct  understanding  with  the  defendant  as  to  what  the  bargain  would 
be ;  that  he  stated  to  the  defendant  that  he  supposed  his  work  was  to  commence  that 
morning  to  continue  for  the  year,  and  that  they  then  had  an  understanding  in  his 
language  as  follows  :  '  He,'  the  defendant,  '  said  I  was  to  work  for  the  year  and  have 
sixty  dollars  a  month,  and  I  was  to  furnish  my  man,  and  I  was  to  have  the  privilefre 
of  house  rent,  wood,  potatoes,  apples,  and  milk,  and  a  horse  and  wagon  once  a  week. 
I  was  to  pay  the  hired  man.  Mr.  Webendorfer  was  to  pay  me,  and  I  was  to  pay  the 
hired  man  out  of  what  Mr.  Webendorfer  paid  me.    I  was  to  board  the  hired  man,  and 


SECT.  L]  derby   V.   PHELPS.  689 

LYDIA  DERBY  v.    GEORGE  W.  PHELPS.  / 

New  Hampshire  Superior  Court  of  Judicature,  November 

Term,  1822. 

[Reported  in  2  New  Hampshire,  515.] 

This  was  an  action  of  assumpsit  on  a  promise  of  marriage.  At  the 
trial  here,  under  the  general  issue,  and  a  plea  of  the  statute  of  limita- 
tions, the  plaintiff  proposed  to  prove,  that  in  A.  D.  1811,  the  defend- 
ant, being  about  to  commence  the  stud}'  of  his  profession,  desired  the 
plaintiff  to  receive  his  addresses  as  a  suitor,  and  at  the  end  of  about 
five  years,  w^hen  he  expected  to  be  settled  in  business,  to  marr}'  him  ; 
and  that,  in  pursuance  of  this  offer,  his  addresses  were  received,  and 
continued  till  the  defendant's  marriage  with  another  lad}',  in  A.  D.  1820. 

This  evidence  was  objected  to,  as  within  the  statute  of  frauds ;  but 
having  been  admitted,  a  verdict  was  found  for  the  plaintiff,  subject  to 
future  consideration  on  the  validity  of  the  above  objection. 

S.  Wilcox  and  B.  Fletcher,  for  plaintiff. 

Phelps,  Bell,  Chamberlain,  and  Bartlett,  for  the  defendant. 

AVooDBURT,  J.  Our  statute  "  to  prevent  frauds  and  perjuries," 
provides,  among  other  things,  "  that  no_  action  shall  bg_brought 
whereby  to  charge  any  person  upon  an  agreement-made^iipon  coix=_ 
sjderation  of  marriage,  or  upon  any  agreement,^  that  is  not  to  be  per^^ 
formed  within^the  spacSjTTone  year  from  thfiJtime-^of  making  it,  unless 
suclTpromise  or  agreement"  "  be  in  writing,"  &c.  1  N.  H.  Laws,  178. 
'  The  defendant  cannot  avail  himself  of  the  first  clause  above  cited ; 
because,  though  once  decided  in  Philpott  v.  Wallet,  3  Lev.  65,  that  a 
contract  to  marry  must  in  all  cases  be  in  writing ;  j'et,  that  decision 
has  since  been  overruled  in  Cork  v.  Baker,  1  Stra.  34,  and  in  Harri 

under  that  arrangement  I  went  to  work  for  Mr.  Webendorfer  at  that  time.'  If  this 
conversation  really  was  had  between  the  parties  on  April  first,  being  in  effect  a  dis- 
tinct renewal  of  the  contract  as  previously  made  and  agreed  upon,  it  would  serve  to 
take  the  case  out  of  the  operation  of  the  statute,  notwithstanding  that  the  terms  of 
both  contracts  were  identical.  On  the  second  trial  the  plaintiff  further  testified  that 
the  first  contract  was  made  on  Sunday  and  on  election  day,  and  that  was  one  of  the 
reasons  why,  to  quote  his  words,  '  I  took  pains  to  make  the  contract  on  the  1st  of  April 
again.'  He  further  testified:  'Q.  How  did  you  happen  to  have  this  talk  that  you 
spoke  of,  with  Mr.  Webendorfer  on  the  morning  of  the  first  of  April  1  A.  Well, 
because  I  had  heard  that  Mr.  Webendorfer  did  n't  always  stand  to  his  agreements, 
and  I  thought  to  have  myself  secured.  I  thought  I  would  make  a  new  arrangement 
on  the  first  of  April  and  everything  would  be  all  right.  Q.  You  thought  you  would 
repeat  the  bargain  ?     A.    I  thought  I  would  make  the  bargain.' 

"  The  difference  in  his  evidence  given  on  the  two  trials  is  vital.  On  the  first  trial 
the  suggestion  was  a  mere  rehearsal  of  the  terms  of  the  original  contract  for  the 
purpose  of  avoiding  any  misnnder.standiiig  as  to  what  they  were.  (,)n  the  second  trial 
he  testified  that  the  bargain  was  expressly  renewed.  Odell  v.  Webendorfer,  60  N.  Y. 
App.  Div.  460,461."  See  also  Comes  y.  Lamson,  16  Conn.  246;  Sines  v.  Superintend- 
ents, 58  Mich.  503 ;  Turner  v.  Hochstadter,  7  Hun,  80 ;  Lajos  v.  Eden  Muaee  Co.,  30 
N.  Y.  Supp.  916. 


690  DERBY   V.   PHELPS.  [CHAP.   IV. 

son  V.  Cage  and  wife,  1  Ld.  Ray.  386;  Salk.  24;  5  Mod.  411 ;  Bull. 
N.  P.  280  ;  2  Eq.  Ca.  Ab.  248;  Skin.  196. 

This  clause  of  the  statute  is  now  held  to  reach  not  mutual  promises 
to  marry,  but  only  promises  for  other  things  made  in  consideration  of 
marriage.     Bac.  Ab.  ''  Agreement,"  C.  3. 

But  under  the  other  clause  of  the  statute,  we  apprehend  the  objec- 
tion to  the  evidence  must  be  adjudged  fatal.  This  was  an  agreement, 
which  by  the  terms  of  it  was  not  to  be  performed  till  the  expiration 
of  about  five  years  ;  and  hence  comes  within  the  ver}-  teeth  of  the 
statute.  Had  the  tenor  of  the  agreement  been,  that  the  contract 
should  be  fulfilled  on  a  certain  event,  which  might  or  might  not  have 
happened  within  a  year,  but  which  in  fact  did  not  happen  till  after  a 
year,  the  agreement  would  not  have  been  within  the  statute.  1  Salk. 
280;  Skin.  326;  Stra.  34;  Burr.  1278;  1  Bl.  Rep.  353  ;  1  Ld.  Ray. 
317  ;  Com.  Rep.  49  ;  Holt,  326 ;  3  Salk.  9  ;  10  John  Rep.  244. 

But  such  was  not  the  tenor  of  it.  Nor  can  this  description  of  con- 
tracts be  taken  out  of  the  statute  by  the  circumstance,  that  when  the 
original  statute  of  frauds  passed  under  Charles  the  II.,  these  contracts 
were  not  sued  at  law,  but  were  merely  the  subject  of  proceedings  to 
compel  a  performance  of  them  in  the  ecclesiastical  courts.  For 
numerous  kinds  of  contracts,  not  then  in  use  and  not  then  prosecuted 
in  the  common  law  courts,  have  since  had  birth  under  the  new 
exigencies  and  improvements  of  societ}',  and  are  all  brought  to  the 
test  of  the  general  provisions  of  the  statute. 

In  respect  to  a  part  performance  of  this  contract,  which  doubtless,  if 
proved,  might  cure  the  absence  of  any  writing  (Bac.  Ab.  "  Agree- 
ment," C,  and  Auths.  there  cited),  the  case  as  saved  presents  no 
question  of  this  kind,  and,  according  to  our  recollection,  none  such 
was  raised  at  the  trial. 

Should  this  be  relied  on  hereafter  as  an  answer  to  the  statute,  it 
will  then  be  early  enough  to  decide  what  ought  to  be  considered  a  part 
performance  of  a  contract,  on  whose  rites  and  ceremonies,  and  their 
respective  importance  in  perfecting  a  marriage,  so  much  diversity  of 
opinion  exists.     See  Londonderry  v.  Chester,  2  N.  H.  268. 

New  trial.^ 

1  Ullman  v.  Meyer,  10  Fed.  Rep.  241  ;  Paris  v.  Strong,  51  Ind.  339;  Nichols  v. 
Weaver,  7  Kan.  373;  Barge  v.  Haslam  (Neb.),  88  N.  W.  Rep.  516.  See  also 
McCouahey  v.  Griffey,  82   la.  564;  Lawrence  v.  Cooke,  56  Me.   187,   193. 

Lewis  V.  Tapman,  90  Md.  294;  Brick  v.  Gannar,  36  Hun,  52,  contra.  See  also 
Clark  V.  Pendleton,  20  Conn.  495;  Neariug  v.  Van  Fleet,  71  Hun,  137,  151  N.  Y. 
643. 


SECT.  I.]  LEE  V.   GRIFFIN.  591 


E.  —  Contracts  for  the  Sale  of  Goods. 


LEE  V.   GRIFFIN. 
In  the  Queek's  Bench,  Mat  9,   1861. 

[Reported  in  1  Best  ^  Smith,  272.] 

Declaration  against  the  defendant,  as  the  executor  of  one  Frances 
P.,  for  goods  bargained  and  sold,  goods  sold  and  delivered,  and  for 
work  and  labor  done  and  materials  provided  bj'  the  plaintiff  as  a 
surgeon-dentist  for  the  said  Frances  P. 

Plea.     That  the  said  Frances  P.  never  was  indebted  as  alleged. 

The  action  was  brought  to  recover  the  sum  of  211.  for  two  sets  of 
artificial  teeth  ordered  b}'  the  deceased. 

At  the  trial,  before  Crompton,  J.,  at  the  sittings  for  Middlesex 
after  Michaelmas  Term,  1860,  it  was  proved  bj'  the  plaintiff  that  he 
had,  in  pursuance  of  an  order  from  the  deceased,  prepared  a  model  of 
her  mouth  and  made  two  sets  of  artificial  teeth ;  as  soon  as  the}'  were 
ready  he  wrote  a  letter  to  the  deceased,  requesting  her  to  appoint  a 
day  when  he  could  see  her  for  the  purpose  of  fitting  them.  To  this 
communication  the  deceased  replied  as  follows  :  — 

"My  dear  Sir.  I  regret,  after  your  kind  effort  to  oblige  me,  my  health 
will  prevent  my  taking  advantage  of  the  early  day.  I  fear  I  may  not  be  able 
for  some  days.  Yours,  &c.,  Frances  P." 

Shortly  after  writing  the  above  letter,  Frances  P.  died.  On  these 
facts  the  defendant's  counsel  contended  that  the  plaintiff  ought  to  be 
nonsuited,  on  the  ground  that  there  was  no  evidence  of  a  delivery  and 
acceptance  of  the  goods  by  the  deceased,  nor  any  memorandum  in 
writing  of  a  contract  within  the  meaning  of  the  17th  section  of  the 
Statute  of  Frauds,  29,  Car.  II.  c.  3.,  and  the  learned  Judge  was  of  that 
opinion.  The  plaintiff's  counsel  then  contended  that,  on  the  authority 
of  Clay  V.  Yates,  1  H.  &  N.  73,  the  plaintiff  could  recover  in  the  action 
on  the  count  for  work  and  labor  done  and  materials  provided.  The 
learned  Judge  declined  to  nonsuit,  and  directed  a  verdict  for  the 
amount  claimed  to  be  entered  for  the  plaintiff,  with  leave  to  the  defend- 
ant to  move  to  enter  a  nonsuit  or  verdict. 

In  Hilary  Term  following,  a  rule  nisi  having  been  obtained 
accordingl}', 

Patchett  now  showed  cause. 

Griffits,  in  support  of  the  rule,  was  not  called  upon  to  argue. 

Crompton,  J.  I  think  that  this  rule  ought  to  be  made  absolute. 
On  the  second  point  I  am  of  the  same  opinion  as  I  was  at  the  trial. 
There  is  not  anv  sufficient  memorandum  in  writing  of  a  contract  to 
satisfy  the   Statute   of  Frauds.     The   case  decided  in  the  House  of 


692  LEE  V.   GRIFFIN.  [CHAP.   IV. 

Lords,  to  which  reference  has  been  made  during  the  argument,  is 
clearly  distinguishable.  That  case  only  decided  that  if  a  document, 
which  is  silent  as  to  the  particulars  of  a  contract,  refers  to  another 
document  which  contains  such  particulars,  parol  evidence  is  admissible 
for  the  purpose  of  showing  what  document  is  referred  to.  Assuming, 
in  this  case,  that  the  two  documents  were  sufficiently  connected,  still 
there  would  not  be  any  sufficient  evidence  of  the  contract.  The  con- 
tract in  question  was  to  dehver  some  particular  teeth  to  be  made  in  a 
particular  way,  but  these  letters  do  not  refer  to  any  particular  bargain, 
nor  in  any  manner  disclose  its  terms. 

The  main  question  which  arose  at  the  trial  was,  whether  the  contract 
in  the  second  count  could  be  treated  as  one  for  work  and  labour,  or 
whether  it  was  a  contract  for  goods  sold  and  delivered.  The  distinction 
between  these  two  causes  of  action  is  sometimes  very  fine  ;  but,  where 
the  contract  is  for  a  chattel  to  be  made  and  delivered,  it  clearly  is  a 
contract  for  the  sale  of  goods.  There  are  some  cases  in  which  the 
supply  of  the  materials  is  ancillary  to  the  contract,  as  in  the  case  of  a 
printer  supplying  the  paper  on  which  a  book  is  printed.  In  such  a 
case  an  action  might  perhaps  be  brought  for  work  and  labor  done,  and 
materials  provided,  as  it  could  hardly  be  said  that  the  subject-matter 
of  the  contract  was  the  sale  of  a  chattel :  perhaps  it  is  more  in  the 
nature  of  a  contract  merely  to  exercise  skill  and  labor.  Cla}'  v. 
Yates,  1  H.  &  N.  73,  turned  on  its  own  peculiar  circumstances.  I 
entertain  some  doubt  as  to  the  correctness  of  that  decision  ;  but  I 
certainly  do  not  agree  to  the  proposition  that  the  value  of  the  skill  and 
labour,  as  compared  to  that  of  the  material  supplied,  is  a  criterion  by 
which  to  decide  whether  the  contract  be  for  work  and  labor  or  for 
the  sale  of  a  chattel.  Here,  however,  the  subject-matter  of  the  contract 
was  the  supply  of  goods.  The  case  bears  a  strong  resemblance  to  that 
of  a  tailor  supplying  a  coat,  the  measurement  of  the  mouth  and  fitting 
of  the  teeth  being  analogous  to  the  measurement  and  fitting  of  the 
garment. 

Hill,  J.  I  am  of  the  same  opinion.  I  think  that  the  decision  iu 
Clay  V.  Yates,  supra,  is  perfectly  right.  That  was  not  a  case  in 
which  a  part}'  ordered  a  chattel  of  another  which  was  afterwards  to  be 
made  and  delivered,  but  a  case  in  which  the  subject-matter  of  the 
contract  was  the  exercise  of  skill  and  labor.  Wherever  a  contract  is 
entered  into  for  the  manufacture  of  a  chattel,  there  the  subject-matter 
of  the  contract  is  the  sale  and  deliver}'  of  the  chattel,  and  the  party 
supplying  it  cannot  recover  for  work  and  labor.  Atkinson  v.  Bell, 
8  B.  &  C.  277,  is,  in  my  opinion,  good  law,  with  the  exception  of  the 
dictum  of  Bayley,  J.,  which  is  repudiated  by  Maule,  J.  in  Grafton  v. 
Arraitage,  2  C.  B.  339,  where  he  says:  "In  order  to  sustain  a  count 
for  work  and  labor,  it  is  not  necessary  that  the  work  and  labor  should 
be  performed  upon  materials  that  are  the  property  of  the  plaintiff." 
And  Tindal,  C.  J.,  in  his  judgment  in  the  same  case,  p.  340,  points 


SECT.    I.]  LEE   V.    GRIFFIN.  593 

out  that  in  the  application  of  the  observations  of  Baj-le}',  J.,  regard 
must  be  had  to  the  particular  facts  of  the  case.  In  every  other  respect, 
therefore,  the  case  of  Atkinson  v.  Bell,  8  B.  &  C.  277,  is  law.  I  think 
that  these  authorities  are  a  complete  answer  to  the  point  taken  at  the 
trial  on  behalf  of  the  plaintiff. 

When,  however,  the  facts  of  this  case  are  looked  at,  I  cannot  see 
how,  wholly  irrespective  of  the  question  arising  under  the  Statute  of 
Frauds,  this  action  can  be  maintained.  The  contract  entered  into  by 
the  plaintiff  with  the  deceased  was  to  supply  two  sets  of  teeth,  which 
■were  to  be  made  for  her  and  fitted  to  her  mouth,  and  then  to  be  paid 
for.  Through  no  default  on  her  part,  she  having  died,  the}'  never  were 
fitted  :  no  action  can  therefore  be  brought  by  the  plaintiff. 

Blackburn,  J.  On  the  second  point,  I  am  of  opinion  that  the  letter 
is  not  a  sufficient  memorandum  in  writing  to  take  the  case  out  of  the 
Statute  of  Frauds. 

On  the  other  point,  the  question  is  whether  the  contract  was  one  for 
the  sale  of  goods  or  for  work  and  labor.  I  think  that  in  all  cases,  in 
order  to  ascertain  whether  the  action  ought  to  be  brought  for  goods 
sold  and  delivered,  or  for  work  and  labor  done  and  materials  provided, 
we  must  look  at  the  particular  contract  entered  into  between  the  parties. 
If  the  contract  be  such  that,  when  carried  out,  it  would  result  in  the 
sale  of  a  chattel,  the  part}'  cannot  sue  for  work  and  labor ;  but,  if  the 
result  of  the  contract  is  that  the  party  has  done  work  and  labor  which 
ends  in  nothing  that  can  become  the  subject  of  a  sale,  the  part}'  cannot 
sue  for  goods  sold  and  delivered.  The  case  of  an  attorney  employed 
to  prepare  a  deed  is  an  illustration  of  this  latter  proposition.  It  can- 
not be  said  that  the  paper  and  ink  he  uses  in  the  preparation  of  the 
deed  are  goods  sold  and  delivered.  The  case  of  a  printer  printing 
a  book  would  most  probably  fall  within  the  same  category.  In 
Atkinson  v.  Bell,  supra,  the  contract,  if  carried  out,  would  have 
resulted  in  the  sale  of  a  chattel.  In  Grafton  v.  Armitage,  2  C.  B.  340, 
Tindal,  C.  J.,  lays  down  this  very  principle.  He  draws  a  distinction 
between  the  cases  of  Atkinson  v.  Bell,  sujyra,  and  that  before  him. 
The  reason  he  gives  is  that,  in  the  former  case,  "the  substance  of 
the  contract  was  goods  to  be  sold  and  delivered  by  the  one  party  to 
the  other :  "  in  the  latter  "  there  never  was  any  intention  to  make  any- 
thing that  could  properly  become  the  subject  of  an  action  for  goods 
sold  and  delivered."  I  think  that  distinction  reconciles  those  two  cases, 
and  the  decision  of  Clay  v.  Yates,  1  H.  &  N.  73,  is  not  inconsistent 
with  them.  In  the  present  case  the  contract  was  to  deliver  a  thing 
which,  when  completed,  would  have  resulted  in  the  sale  of  a  chattel ; 
in  other  words,  the  substance  of  the  contract  was  for  goods  sold  and 
tielivered.  I  do  not  think  that  the  test  to  apply  to  these  cases  is  whether 
the  value  of  the  work  exceeds  that  of  the  materials  used  in  its  execu- 
tion ;  for,  if  a  scul[)tor  were  employed  to  execute  a  work  of  art,  greatly 
as  his  skill  and  labor,  supposing  it  to  be  of  the  highest  description, 
VOL.  I.  — 38 


694  GODDAKD    V.    BINNEY.  [CHAP.    IV. 

might  exceed  the  value  of  the  marble  on  which  he  worked,  the  contract 
would,  in  ray  opinion,  nevertheless,  be  a  contract  for  the  sale  of  a 
chattel. 

Mule  absolute.^ 


«y^ 


GODDARD   V.  BINNEY. 
SuPREMK  Judicial  Court  of  Massachusetts. 

[Reported  in  115  MassachuneUs,  450.] 

Contract  to  recover  the  price  of  a  buggy  built  by  the  plaintiff  for 
the  defendant. 

Trial  in  the  Superior  Court  before  Dewet,  J.,  who  reported  the  case 
for  the  consideration  of  this  court  in  substance  as  follows  : 

The  plaintiff,  a  carriage  manufacturer  in  Boston,  testified  that  the 
defendant  came  to  his  place  of  business  in  April,  1872,  and  directed 
the  plaintiff  to  make  for  him  a  bugg}',  and  the  plaintiff  entered  the 
order  in  his  order-book  ;  the  defendant  gave  directions  that  the  color 
of  the  lining  should  be  drab,  and  the  outside  seat  of  cane,  and  as  to 
the  painting,  and  also  that  the  buggy  was  to  have  on  it  his  monogram 
and  initials.  The  sura  of  $675  was  agreed  as  the  price.  It  was  to  be 
done  in  or  about  four  months.  The  plaintiff  immediately  began  work 
upon  the  bugg}^  and  made  every  part,  it  being  painted,  lined,  and  with 
the  initials,  as  ordered. 

The  last  of  August,  when  the  buggy  was  nearly  completed,  wanting 
only  the  last  coat  of  varnish,  and  the  hanging  of  it  on  the  wheels,  the 
defendant  came  to  the  plaintiffs  place  of  business  and  asked  when  it 
would  be  done.  The  plaintiff  replied  in  about  ten  daj's,  and  asked  the 
defendant  if  he  might  sell  the  buggy,  or  if  he  wished  it,  as  he,  the 
plaintiff,  had  opportunities  of  selling  it  to  others.  The  defendant  then 
inquired  if  the  plaintiff  could  furnish  him  another  if  he  sold  that,  to 
which  he  replied  he  could  not,  as  he  was  going  to  give  up  the  business 
of  manufacturing,  and  that  unless  he  took  this  he  could  not  have  any. 
The  defendant  then  said  he  would  keep  this  one. 

The  defendant  did  not  at  this,  nor  at  any  other  time,  see  the  bugg}'. 
The  bugg}'  was  finished  September  l.o,  in  accordance  with  the  original 
order.  It  is  usual  to  keep  carriages  some  time  after  they  are  finished 
to  let  the  paint  and  varnish  harden. 

October  14,  1872,  the  plaintiff  sent  to  the  defendant  the  following 
bill:  "Boston,  October  14,  1872.  Mr.  H.  P.  Binney.  Bo't  of  Thos. 
Goddard,  one  new  cane  seat  bugg}-,  $675.  Rec'd  Pay't.  (Buggy 
was  finished  Sept.   15.)" 

1  Isaacs  V.  Hardy,  1  Cab.  &  E.  287 ;  Burrell  v.  Highleyman,  33  Mo.  App.  183 ;  Pike 
Electric  Co.  v.  Richardson  Drug  Co.,  42  Mo.  App.  272;  Pratt  v.  Miller,  109  Mo.  78, 
ace. 


SECT.   I.]  GODDARD   V.   BINKEY.  595 

The  bill  was  presented  by  a  clerk  of  the  plaintiff.  The  defendant, 
after  looking  at  it,  said  he  would  see  the  plaintiff  soon.  The  bill  was 
in  the  plaintiff's  handwriting  and  was  kept  by  the  defendant.  The 
same  clerk  called  again  soon  after  and  asked  the  defendant  for  a  check, 
to  which  he  replied  that  he  would  pay  it  soon,  and  would  see  the 
plaintiff.  Calling  a  third  time,  before  the  fire  of  November  9th,  the 
defendant  said,  "Tell  Mr.  Goddard  I  \v'ill  come  and  see  him  right 
away."  By  the  fire  of  November  9,  1872,  this  buggy  and  all  the 
propert}'  on  the  plaintiff's  premises  were  destroj-ed.  After  the  fire  the 
plaintiff  again  called  on  the  defendant  for  payment.  He  wanted  to 
know  if  it  was  insured,  and  said  he  would  see  the  plaintiff  about  it. 

After  the  bugg}'  was  finished,  it  was  kept  with  the  completed  work 
on  the  plaintiffs  premises  ;  and  it  was  at  all  times  after  it  was  finished 
till  burned  worth  and  could  have  been  sold  by  the  plaintiff  for  upwards 
of  $700,  the  value  of  buggies  of  the  plaintiff's  manufacture  having 
advanced  after  the  contract  was  made  in  April. 

The  defendant  put  in  no  evidence,  and  contended  that  this  action 
could  not  be  maintained,  that  it  came  within  the  provisions  of  the  Gen. 
Sts.  c.  105,  §  5,  and  that  there  had  never  been  any  delivery  of  the 
said  bugg}'  to  the  defendant,  nor  an}'  acceptance  thereof  by  him,  and 
that  the  property  belonged  to  and  was  at  the  sole  risk  of  the  plaintiff 
at  the  time  of  the  fire,  and  that  if  an}*  cause  of  action  arose  against 
the  defendant  for  not  taking  away  the  said  bugg}',  it  arose  prior  to  the 
fire,  and  no  damage  was  caused  to  the  plaintiff  thereupon.  The  plain- 
tiff contended  that  the  contract  did  not  come  within  the  provision  of 
the  statute  referred  to,  and  that  it  was  the  duty  of  the  defendant,  upon 
being  notified  that  the  buggy  was  completed,  to  take  the"  same  away 
within  a  reasonable  time,  and  that  not  having  done  so  the  buggy  was 
at  the  risk  of  the  defendant  when  burned. 

The  plaintiff  farther  contended  that  upon  the  evidence  the  jury 
would  be  authorized  to  find  that  there  had  been  a  delivery  of  the 
buggy  to  the  defendant,  and  an  acceptance  by  him,  and  without  sub- 
mitting that  question  to  the  jury  it  was  agreed  b}'  the  parties,  that  if 
there  was  any  evidence  which  could  have  properly  been  submitted  to 
the  jury  as  showing  a  deliver}-,  and  an  acceptance  of  the  buggy  by 
the  defendant,  then  it  shall  be  taken  that  the  jury  would  have  found 
said  delivery  and  acceptance. 

Upon  the  evidence  hereinbefore  stated,  the  presiding  judge  directed 
a  verdict  for  the  defendant ;  and  it  was  agreed  that  if  the  jury  would 
have  been  authorized  to  find  a  deliver}-  and  an  acceptance  by  the 
defendant,  or  if  upon  the  facts  above  stated  the  court  is  of  opinion  that- 
at  the  time  of  the  fire  the  said  Iniggy  was  on  the  premises  of  the  plain- 
tiff, at  the  risk  of  the  defendant,  the  verdict  is  to  be  set  aside,  and 
judgment  entered  for  $675  and  interest,  from  October  15,  1872  ;  other- 
wise, judgment  on  the  verdict. 

C.  A.   Welch,  for  the  plaintiff. 

G.  Putnam,  Jr.,  for  the  defendant.      The  contract   between  the 


596  GODDARD    V.   BINNEY.  [CHAP.    IV. 

plaintiff  and  defendant  was  not  one  for  labor  and  materials,  but  was 
a  contract,  the  result  of  which,  when  carried  out,  would  be  the  cliange 
of  property  in  the  chattel  from  the  plaintiff  to  the  defendant,  and  there- 
fore was  a  contract  of  sale  within  the  statute  of  frauds.  Benjamin  on 
Sales,  79  Sf  seq. ;  Lee  v.  Griffin,  1  B.  &  S.  272  ;  Atkinson  v.  Bell, 
8  B.  &  C.  277  ;  Moody  v.  Brown,  34  Me.  107.  In  the  cases  of  Mixer 
V.  Howarth,  21  Pick.  205,  and  Spencer  v.  Cone,  1  Met.  283,  it  was 
held  that  the  statute  of  frauds  does  not  apply  to  contracts  for  the 
manufacture  of  articles  not  in  the  usual  course  of  the  vendor's  business  ; 
but  this  is  on  the  ground  that  the  statute  does  not  apply  to  executory 
contracts,  unless  the}'  relate  to  articles  usually  sold  by  the  vendor.  It 
has  never  been  decided  in  Massachusetts  that  such  contracts  are  for 
labor  and  material. 

The  case  of  Mixer  v.  Howarth  rests  on  a  supposed  distinction  which 
more  recent  criticism  has  shown  not  to  be  based  ou  principle  nor  on 
a  sound  construction  of  the  statute.  Benjamin  on  Sales,  79  ;  Lee 
V.  Griffin,  and  Mood}'  v.  Brown,  supra.  It  is  noticeable  that  every 
case  which  has  since  arisen  in  the  Commonwealth,  except  Spencer 
V.  Cone,  1  Met.  283,  which  was  decided  the  next  year  in  a  per  curiam 
opinion,  has  been  distinguished  from  it.  Gardners.  Joy,  9  Met.  177; 
Lamb  v.  Crafts,  12  Met.  353;  Waterman  v.  Meigs,  4  Cush.  497; 
Clark  V.  Nichols,  107  Mass.  547.  If  the  decision  of  Mixer  v.  Howarth 
rests  upon  the  distinction  between  articles  which  the  plaintiff  usually 
has  for  sale  in  the  course  of  his  business  and  articles  which  he  manu- 
factures expressly  to  order,  then  that  decision  is  overruled  in  principle 
by  the  later  case  of  Lamb  v.  Crafts,  where  the  court  says :  "  When  a 
person  stipulates  for  the  future  sale  of  articles,  which  he  is  habitually 
making,  and  which,  at  the  time,  are  not  made  or  finished,  it  is  essen- 
tially a  contract  of  sale,  and  not  a  conti'act  for  labor."  In  Mixer 
V.  Howarth,  as  in  this  case,  the  article  was  manufactured  in  the  course 
of  the  plaintiff's  business,  and  consequently  the  transaction  was  a  con- 
tract of  sale,  within  the  meaning  of  Lamb  v.  Crafts. 

Ames,  J.  Whether  an  agreement  like  that  described  in  this  report 
should  be  considered  as  a  contract  for  the  sale  of  goods,  within  the 
meaning  of  the  statute  of  frauds,  or  a  contract  for  labor,  services,  and 
materials,  and  therefore  not  within  that  statute,  is  a  question  upon 
which  there  is  a  conflict  of  authority.  According  to  a  long  course  of 
decisions  in  New  York,  and  in  some  other  states  of  the  Union,  an 
agreement  for  the  sale  of  any  commodity  not  in  existence  at  the  time, 
but  wiiieh  the  vendor  is  to  manufacture  or  put  in  a  condition  to  be 
delivered  (such  as  flour  from  wheat  not  yet  ground,  or  nails  to  be  made 
from  iron  in  the  vendor's  hands),  is  not  a  contract  of  sale  within  the 
meaning  of  the  statute.  Crookshank  v.  Burrell,  18  Johns.  58  ;  Sewell 
V.  Fitch,  8  Cow.  215 ;  Robertson  v.  Vaughn.  5  Sandf.  1  ;  Downs 
V.  Ross,  23  Wend.  270  ;  Eichelberger  v.  M'Cauley,  5  Har.  &  J.  213. 
In  England,  on  the  other  hand,  the  tendency  of  the  recent  decisions  is 
to  treat  all  contracts  of  such  a  kind  intended  to  result  in  a  sale,  as  sub- 


SECT.   I.] 


GODDARD   V.   BINNEY. 


697 


stantially  contracts  for  the  sale  of  chattels ;  and  the  decision  in  Lee 
V.  Griffin,  1  B.  &  S.  272,  goes  so  far  as  to  hold  that  a  contract  to  make 
and  fit  a  set  of  artificial  teeth  for  a  patient  is  essentiallj'  a  contract  for 
the  sale  of  goods,  and  therefore  is  subject  to  the  provisions  of  the 
statute.  See  Maberley  v.  Sheppard,  10  Bing.  99  ;  Howe  v.  Palmer, 
3  B.  &  Aid.  321  ;  Baldey  v.  Parker,  2  B.  &  C.  37  ;  Atkinson  v.  Bell, 
8  B.  «fe  C.  277. 

In  this  Commonwealth,  a  rule  avoiding  both  of  these  extremes  was 
established  in  Mixer  v.  Howarth,  21  Pick.  205,  and  has  been  recognized 
and  affirmed  in  repeated  decisions  of  more  recent  date.     T^eeffect, o_L 
Uiesedecisi9ii§.jv^_jinxlerstandto^  thatacoiitract  for 

t^e^_|^^jof_articles  then  existing,  or  sucH_agI^5eYen5oilin  the  orHTnary 
coijrse  of  hisj)^usi^ass^  rnauLifactures  or  jprocures  for  the  general  market, 
whetKer  on  hand  at  the  time  or  not,  is  a  contract  for  the  sale^oTgoods, 
to  which  the  statute  apj)Iies.__JButj^on_the  other  hand,  if  the^go^sare' 
toJi^'manuTactuJ^d^speciaJly^i^  purchaser,  and  uponEisspecial^ 
ord er,^a n djiot^P^^ lie_ge n e ral  marke tTthe^'CliSS'lsTiorwTth i n  the  statute. 
Spencer  i:  Cone,  1  Met/ 2S3.  '***-Tne~dT5Linutlon7**~"5iiy^n3hiet"  Justice 
Shaw,  in  Lamb  v.  Crafts,  12  Met.  353,  '■'•  we  believe  is  now  well  under- 
stood. When  a  person  stipulates  for  the  future  sale  of  articles,  which 
he  is  habitualU-  making,  and  which,  at  the  time,  are  not  made  or 
finished,  it  is  essentiall}'  a  contract  of  sale,  and  not  a  contract  for 
labor  ;  otherwise,  when  the  article  is  made  pursuant  to  the  agreement." 
In  Gardner  v.  Joy,  9  Met.  177,  a  contract  to  bu}'  a  certain  number  of 
boxes  of  candles  at  a  fixed  rate  per  pound,  which  tiie  vendor  said  he 
would  manufacture  and  deliver  in  about  three  months,  was  held  to  be 
a  contract  of  sale  and  within  the  statute.  To  the  same  general  effect 
are  Waterman  ?;.  Meigs,  4  Cush.  497,  and  Clark  u.  Nichols,  107  Mass. 
547.  It  is  true  tliat  in  "  the  infiniteh'  various  shades  of  different  con- 
tracts," there  is  some  practical  difficulty  in  disposing  of  the  questions 
that  arise  under  that  section  of  the  statute.  Gen.  Sts.  c.  105,  §  5. 
But  we  see  no  ground  for  holding  that  there  is  an}-  uncertainty  in  the 
rule  itself.  On  the  contrar}-,  its  correctness  and  justice  are  clearly 
implied  or  expressly  affirmed  in  all  of  our  decisions  upon  the  subject- 
matter.  It  is  proper  to  say  also  tliat  the  present  case  is  a  much 
stronger  one  than  Mixer  v.  Howarth.  In  this  case,  the  carriage  was 
not  only  built  for  the  defendant,  but  in  conformity  in  some  respects 
with  his  directions,  and  at  his  request  was  marked  with  his  initials.  It 
was  neither  intended  nor  adapted  for  the  general  market.  As  we  are 
by  no  means  prepared  to  overrule  the  decision  in  that  case,  we  must 
therefore  hold  that  the  statute  of  frauds  does  not  apply  to  the  contract 
which  the  plaintiff  is  seeking  to  enforce  in  this  action. 

IndeptMidently  of  that  statute,  and  in  cases  to  which  it  does  not  apply, 
it  is  well  settled  that  as  between  the  immediate  parties,  property  in 
personal  chattels  may  pass  by  bargain  and  sale  without  actual  delivery. 
If  the  parties  have  agreed  upon  the  specific  thing  that  is  sold  and  tlie 
price  that  the  buyer  is  to  pay  for  it,  and  nothing  remains  to  be  done 


598  GODDAED   V.   BINNEY.  [CHAP.    IV. 

but  that  the  bu^'^er  should  pay  the  price  and  take  the  same  thing,  the 
propert}'  passes  to  the  buyer,  and  with  it  the  risk  of  loss  by  fire  or 
any  other  accident.  The  appropriation  of  the  chattel  to  the  buyer  is 
equivalent,  for  that  purpose,  to  delivery  by  the  seller.  The  assent  of 
the  buyer  to  take  the  specific  chattel  is  equivalent  for  the  same  purpose 
to  his  acceptance  of  possession.  Dixon  v.  Yates,  5  B.  «fe  Ad.  313,  340. 
The  property  may  well  be  in  the  buj-er,  though  the  right  of  possession, 
or  lien  for  the  price,  is  in  the  seller.  There  could  in  fact  be  no  such 
lien  without  a  change  of  ownership.  No  man  can  be  said  to  have 
a  lien,  in  the  proper  sense  of  the  term,  upon  his  own  property,  and  the 
seller's  lien  can  onl}'  be  upon  the  buyer's  property.  It  has  often  been 
decided  that  assumpsit  for  the  price  of  goods  bargained  and  sold  can 
be  maintained  where  the  goods  have  been  selected  by  the  buyer,  and 
set  apart  for  him  by  the  seller,  though  not  actually  delivered  to  him, 
and  where  nothing  remains  to  be  done  except  tliat  the  buyers  should 
pay  the  agreed  price.  In  such  a  state  of  things  the  property  vests  in 
him,  and  with  it  the  risk  of  any  accident  that  may  happen  to  the  goods 
in  the  meantime.  Noy's  Maxims,  89  ;  2  Kent  Com.  (12  ed.)  492  ; 
Bloxam  v.  Sanders,  4  B.  &  C.  941 ;  Tarling  v.  Baxter,  6  B.  &  C.  360 ; 
Hinde  v.  Whitehouse,  7  East,  571 ;  Macomber  v.  Parker,  13  Pick. 
175,  183  ;  Morse  v.  Sherman,  106  Mass.  430. 

In  the  present  case,  nothing  remained  to  be  done  on  the  part  of  the 
plaintiff.  The  price  had  been  agreed  upon  ;  the  specific  chattel  had 
been  finished  according  to  order,  set  apart  and  appropriated  for  the 
defendant,  and  marked  with  his  initials.  The  plaintiff  had  not  under- 
taken to  deliver  it  elsewhere  than  on  his  own  premises.  He  gave  notice 
that  it  was  finished,  and  presented  his  bill  to  the  defendant,  who 
promised  to  pa}'  it  soon.  He  had  previously  requested  that  the  car- 
riage should  not  be  sold,  a  request  which  substantially  is  equivalent  to 
asking  the  plaintiff  to  keep  it  for  him  when  finished.  Without  con- 
tending that  these  circumstances  amount  to  a  delivery  and  acceptance 
within  the  statute  of  frauds,  the  plaintiflf  may  well  claim  that  enough 
has  been  done,  in  a  case  not  within  that  statute,  to  vest  the  general 
ownership  in  the  defendant,  and  to  cast  upon  him  the  risk  of  loss 
by  fire,  while  the  chattel  remained  in  the  plaintiffs  possession. 

According  to  the  terms  of  the  reservation,  the  verdict  must  be  set 
aside,  and  Judgment  entered  for  the  ^jl'd'^tiJ'V 

1  Flynn  v.  Dougherty,  91  Cal.  669;  Atwater  v.  Hough,  29  Conn.  508;  Cason  v. 
Cheely,  6  Ga  .554;  Hight  v.  Ripley,  19  Me.  137;  Cummiugs  v.  Deunet,  26  Me.  397; 
Abbott  V.  Gilchrist,  34  Me.  260;  Edwards  i'.  Grand  Trunk  R.  R.  Co.,  48  Me.  379; 
Crockett  v.  Scribuer,  64  Me.  447  ;  Turner  v.  Mason,  65  Mich.  662  ;  Phipps  v.  McFarlane, 
3  Minn.  109;  Hnssell  v.  Wisconsin  Ry.  Co.,  39  Minn.  145  ;  Brown  &  Haywood  Co.  v. 
Wunder,  64  Minn.  450;  Pitkin  v.  Noyes,  48  N.  H.  294;  Prescott  v.  Locke,  51  N.  H. 
94;  Finney  v.  Apgar,  31  N.J.  L.  266;  Pawelski  v.  Hargreaves,  4?  N.  J.  L.  334; 
Orman  v.  Hager,  3  N.  Mex.  331;  Puget  Sound  Depot  c.  Rigby,  13  Wash.  264; 
Meincke  v.  Falk,  55  Wis.  427  ;  Hanson  t'.  Roter,  64  Wis.  622 ;  Williams-Hayward 
Shoe  Co.  V.  Brooks,  9  Wyo.  424,  ace.  See  also  Sawyer  i:.  Ware,  36  Ala.  675 ;  Pratt 
t'.  Miller,  109  Mo.  78 ;  Scales  v.  Wiley,  68  Vt.  39.  Compare  Smalley  v.  Hamblin,  170 
Mass.  380. 


SECT.   I.]  PARSONS   V.   LOUCKS.  699 

PARSONS  V.  LOUCKS.  j/ 

New  York  Coijrt  of  Appeals,  September,  1871. 
[Reported  in  48  New  York,  17.] 

Appeal  from  judgment  of  the  General  Term  of  the  Superior  Court, 
in  the  city  of  New  York,  affirming  a  judgment  in  favor  of  plaintiffs, 
entered  upon  the  report  of  a  referee. 

The  action  is  to  recover  damages  for  an  alleged  breach  of  contract 
to  manufacture  and  deliver  a  quantity  of  paper. 

The  referee  to  whom  this  case  was  referred  found,  and  reported  as 
matter  of  fact : 

1st.  That  on  or  about  the  30th  day  of  October,  1862,  it  was  agreed 
between  the  plaintiffs  and  the  defendants,  who  then  were  and  still  are 
copartners  as  paper  manufacturers,  that  the  defendants  should  manu- 
facture and  deliver  to  the  plaintiffs,  at  the  cit}'  of  New  York,  ten  tons, 
to  wit,  20,000  pounds  of  book  paper,  similar  to  other  paper  which  the 
defendants  had  previously  made  for  the  plaintiffs,  as  soon  as  thej',  the 
defendants,  should  finish  certain  other  orders  for  paper,  which  they 
stated  they  had  on  hand,  and  would  take  about  three  weeks  from  said 
date  last  mentioned,  with  a  fair  supply  of  water,  to  finish  ;  and  that 
the  plaintiffs  on  such  deliver}-  should  pa}-  the  defendants  therefor 
thirteen  cents  a  pound,  less  a  discount  of  five  per  cent. 

2d.  That  in  the  month  of  Januar}-,  1863,  and  in  or  about  the  middle 
of  that  month,  the  defendants  stated  to  the  plaintiffs  that  the}'  would 
not  perform  the  said  agreement,  or  manufacture  or  deliver  said  paper, 
and  refused  the  said  agreement,  although  thereto  requested  by  the 
plaintiffs,  and  that  the  plaintiffs  were  at  all  times  read}'  and  willing  to 
receive  said  paper  and  pay  for  the  same,  pui'suant  to  the  terms  of  the 
said  agreement,  and  that  said  defendants  have  never  delivered  to  said 
plaintiffs  said  ten  tons  of  paper,  or  an}-  part  thereof,  but  have  refused 
so  to  do. 

3d.  That  by  reason  of  the  breach  of  the  said  agreement  the  plaintiffs 
have  sustained  damage  to  the  amount  of  §1,930,  as  of  the  time  when 
such  breach  occurred,  the  difference  between  the  contract  price  (thir- 
teen cents,  less  five  per  cent  discount)  per  pound,  and  the  market  price 
of  such  paper  (twenty-two  cents  per  pound)  at  the  time  of  such  breach, 
on  20,000  pounds,  amount  to  said  sum  of  $1,930. 

As  matter  of  law  :  That  the  plaintiffs  are  entitled  to  recover  of  the 
defendants  said  sum  of  $1,930,  with  interest  tliereon  since  the  1st  day 
of  January,  1863,  that  is  to  say,  the  sum  of  $2,301.51,  with  costs. 

Augustas  F'.  Smith,  for  the  appellants. 

John  E.  Parsons,  for  the  respondents. 

Hunt,  C.  J.  The  paper  to  be  delivered  was  not  in  existence  at  the 
time  of  the  making  of  the  contract  in  October,  1862.  It  was  yet  to  be 
brought  into  existence  by  the  labor  and  the  science  of  the  defendants. 
Of  the  20,000  pounds  to  be  delivered,  not  an  ounce  had  then  been 


600  PARSONS   V.   LOUCKS.  [CHAP.   lY. 

manufactured.  It  was  all  of  it  to  be  created  by  the  defendants,  and 
at  their  mill.  In  such  a  ease  it  is  well  settled,  that  the  statute  of 
frauds  does  not  apply  to  the  contract.  The  distinction  is  between  the 
sale  of  goods  in  existence,  at  the  time  of  making  the  contract,  and  an 
agreement  to  manufacture  goods.  The  former  is  within  the  prohibition 
of  the  statute,  and  void  unless  it  is  in  writing,  or  there  has  been  a 
deliver}'  of  a  portion  of  the  goods  sold  or  a  payment  of  the  purchase- 
price.  The  latter  is  not.  The  statute  reads,  "  every  contract./br  <Ae 
sale  of  any  goods,  chattels,  or  things  in  action,  for  the  price  of  fifty 
dollars  or  more,  shall  be  void  unless,"  etc.  2  R.  S.  136,  §  3.  The 
statute  alludes  to  a  sale  of  goods,  assuming  that  the  articles  are  already 
in  existence.  This  distinction  was  settled  in  this  State  in  1820,  b}' 
the  case  of  Crookshank  v.  Burrell  (18  John.  R.  58),  and  has  been 
followed  and  recognized  in  many  others.  Sewell  v.  Fitch,  8  Cowen, 
215  ;  Robertson  y.  Vaughan,  5  Sand.  S.  C.  R.  1 ;  Bronson  v.  Wiman, 
10  Barb.  406  ;  Donovan  v.  Willson,  26  Barb.  138  ;  Parker  v.  Schenck, 
28  id.  38;  Mead  v.  Case,  33  id.  202;  Smith  v.  N.  Y.  Central  R.  R., 
4  Keyes,  194. 

The  present  is  not  one  of  the  border  cases,  in  which  an  embarrass- 
ing or  doubtful  question  is  presented,  as  where  wheat  is  sold,  but  the 
labor  of  thrashing  remains  to  be  done  (Downs  v.  Ross,  23  Wend.  270), 
or  a  sale  of  flour  which  has  yet  to  be  ground  from  tlie  wheat  (Garbutt 
V.  Watson,  5  B.  &  Aid.  613),  or  the  sale  of  wood  or  timber  which 
requires  to  be  cut  or  corded  (Smith  v.  N.  Y.  Central  R.  R.  sujyra), 
nor  where  the  defendants  might  procure  other  parties  to  manufacture 
the  paper.  3  Pars,  on  Contracts,  52.  It  was  a  simple  naked  agree- 
ment to  manufacture  at  their  own  mills,  and  deliver  at  a  specified  price, 
20,000  pounds  of  paper  of  specified  sizes,  no  part  of  which  was  in 
existence  at  the  time  of  making  the  contract.  Indeed,  there  is  no 
evidence  that  the  rags  and  other  materials  from  which  it  was  to  be 
manufactured  were  owned  by  the  defendants,  or  were  in  existence, 
except  so  far  as  it  ma}'  be  argued  that  matter  is  indestructible,  and 
that  in  some  form  they  must  necessarily  have  then  existed.  As  to 
cases  of  this  character,  the  course  of  decisions  in  this  State  has  been 
uniform.  If  we  desired  to  do  otherwise,  we  have  no  choice  ;  we  must 
follow  them. 

The  judgment  must  be  aflSrmed  with  costs. 

All  concur  for  aflSrmance,  except  Gray,  C,  dissenting.^ 

Judgment  affirmed^ 

^  The  dissenting  opinion  of  Gray,  C,  is  omitted. 

2  In  Cooke  v.  Millard,  65  N.  Y.  352,  the  defendants  desiring  to  purchase  lumber, 
went  to  the  plaintiff's  yard  and  were  shown  lumber  of  the  desired  quality,  but  which 
needed  to  be  dressed  and  cut  into  the  different  sizes  desired.  An  order  was  given 
orally  for  certain  quantities  The  order  was  complied  with,  and  the  lumber  was 
placed  as  ordered  on  the  plaintiff's  dock.  While  there  it  was  burned.  The  plaintiffs 
sued  for  the  price.    Dwight,  Commissioner,  in  giving  judgment  for  the  defendant,  said : 

"  The  New  York  rule  is  still  different.  It  is  held  here  by  a  long  course  of  decisions, 
that  an  agreement  for  the  sale  of  any  commodity  not  in  existence  at  the  time,  but 
■which  the  vendor  is  to  manufacture  or  put  in  a  condition  to  be  delivered,  such  as  flour 


SECT.    I.]  GREENWOOD   V.   LAW.  601 


FRANCES   GREENWOOD,   Plaintiff  in   Error,   v.   GEORGE 
LAW,   Defendant   in   Error. 

New  Jersey  Court  of  Errors  of  Appeals,  November  Term,  1892. 

[Reported  in  55  New  Jersey  Law,  168.] 

Van  Stckel,  J.  Law,  the  plaintiff  below,  gave  to  Greenwood,  the 
defendant,  a  mortgage  upon  lands  in  this  state  for  the  sum  of  $3,700. 
Law  alleged  that  Greenwood  entered  into  a  parol  agreement  with  him 
to  assign  him  this  mortgage  for  the  sum  of  83,000,  and  brought  this  suit 
to  recover  damages  for  the  refusal  of  Greenwood  to  execute  said  parol 
agreement. 

On  the  trial  below,  a  motion  was  made  to  nonsuit  the  plaintiff,  on 
the  ground  that  the  alleged  agreement  was  within  the  statute  of  frauds. 
The  refusal  of  the  trial  court  to  grant  this  motion  is  assigned  for  error. 

Lord  Chief  Justice  Denman,  in  Humble  v.  Mitchell,  reported  in  11 
Ad.  &  E.  205,  and  decided  in  1840,  said  that  no  case  directly  in  point 

from  wheat  not  yet  ground,  or  nails  to  be  made  from  iron  belonging  to  the  manufac- 
turer, is  not  a  contract  of  sale.  The  New  York  rule  lays  stress  on  the  word  sale. 
There  must  be  a  sale  at  the  time  the  contract  is  made.  The  latest  and  most  authori- 
tative expression  of  the  rule  is  found  in  a  recent  case  in  this  court.  Parsons  v. 
Loucks,  48  N.  Y.  17,  19.  The  contrast  between  Parsons  v.  Loucks,  in  this  State,  on 
the  one  hand,  and  Lee  ".  Griffin,  1  Best  &  Smith,  272,  in  England  on  the  other,  is,  that 
in  the  former  case  the  word  sale  refers  to  the  time  of  entering  into  the  contract,  while 
in  the  latter,  reference  is  had  to  the  time  of  delivery,  as  contemplated  by  the  parties. 
If  at  tliat  time  it  is  a  chattel  it  is  enough,  according  to  the  English  rule.  Other  cases 
in  this  State  agreeing  with  Parsons  v.  Loucks,  are  Crookshank  v.  Burrel,  18  J.  R. 
58;  Sewail  v.  Fitch,  8  Cow.  215;  Robertson  v.  Vaughn,  5  Sandf.  S.  C.  1 ;  Parker  v. 
Schenck,  28  Barb.  38.  These  cases  are  based  on  certain  old  decisions  in  England, 
such  as  Towers  v.  Osborne,  1  Strange,  506,  and  Clayton  v.  Andrews,  4  Burrow,  2101, 
which  have  been  wholly  discarded  in  that  country. 

"  The  case  at  bar  does  not  fall  within  the  rule  in  Parsons  v.  Loucks.  The  facts  of 
that  case  were,  that  a  maimfacturer  agreed  to  make  for  the  other  party  to  the  contract 
two  tons  of  book  paper.  The  paper  was  not  in  existence,  and,  so  far  as  appears,  not 
even  the  rags, '  e.xcept  so  far  as  such  existence  may  be  argued  from  the  fact  that  mat- 
ter is  indestructible.'  So  in  Sewail  v.  Fitch,  supra,  the  nails  which  were  the  subject 
of  the  contract  were  not  theu  wrought  out,  but  were  to  be  made  and  delivered  at 
a  future  day. 

"  Nothing  of  this  kind  is  found  in  the  present  case.  The  lumber,  with  the  possible 
exception  of  the  clapboards,  was  all  in  existence  when  the  contract  was  made.  It  only 
needed  to  be  prepared  for  the  purchaser  —  dressed  and  put  in  a  condition  to  fill  his 
order.  The  court,  accordingly,  is  not  hampered  iu  the  disposition  of  this  cause  by 
authority,  but  may  proceed  upon  principle.   .  .  . 

"  In  the  view  of  these  principles,  the  defendants  had  the  right  to  set  up  the  statute 
of  frauds.  I  think  that  this  was  so  even  to  the  clapboards.  Although  not  strictly  in 
existence  as  clapboards,  they  fall  within  the  rule  in  Smith  v.  Central  Railroad  Com- 
pany. They  were  no  more  new  products  than  was  the  wood  in  that  case.  There  was 
simply  to  be  gone  through  with  a  process  of  dividing  and  adapting  existing  materials 
to  the  plaintiffs'  use.  It  would  be  difficult  to  distinj,'ui.sh  between  splitting  planks  into 
clapboards,  and  trees  into  wood.  No  especial  skill  is  required,  as  all  the  work  is  done 
by  machinery  in  general  use,  and  readily  managed  by  any  producers  of  ordinary 
intelligence.     The  case  bears  no  resemblance  to  that  of  Parsons  i'.  Loucks,  where  the 


602 


GEEENWOOD   V.   LAW. 


[chap.    IV. 


on  this  subject  had  been  found,  and  he  held  that  shares  in  an  incor- 
porated company  were  not  goods,  wares,  and  merchandise  within  the 
seventeenth  section  of  the  statute  of  frauds. 

He  overlooked  the  cases  of  IMussell  \k  Cooke,  reported  in  Precedents 
in  Chancer}-,  533  (decided  in  1720),  and  CruU  v.  Dodson,  reported  in 
Select  Cases  in  Chancery,  41  (decided  in  1725),  in  which  the  contrary 
view  was  taken. 

In  the  case  of  Pickering  v.  Appleb}',  Com.  354,  this  question  was 
fully  argued  before  the  twelve  judges,  who  were  equally  divided  upon 
it.  The  cases  decided  in  the  Eiiglisli  courts  since  1840  have  followed 
Humble  v.  Mitchell.^  They  will  be  found  collected  in  Benjamin  on 
Sales  (ed.  1888),  in  a  note  on  page  106. 

In  this  country'  a  different  rule  prevails  in  most  of  the  states. 

In  Baldwin  v.  Williams,  3  Mete.  365,  a  parol  contract  for  the  sale  of 
a  promissory  note  was  held  to  be  within  the  statute.^ 

In  Connecticut  and  Maine  a  contract  for  the  sale  of  shares  in  a  joint 
stock  company  is  required  to  be  in  writing.  North  v.  Forest,  15  Conn. 
400  ;  Pray  v.  Mitchell,  60  Me.  430.3 

Chief  Jusj^ceShaw,  after  a  full  discussion  of  the  subject  in  Tisdale  v. 
Harris,  20  Pick.  9,  concludes  that  a  contract  for  thebaic  of  shares  in  a 
nianufactudngco^)Oi^^  sale  of-^gflQ^ds  or  tner- 

cluindise  witliin_the&l;j^^^  of  the  other 

requisites  of  the  statute  must  bej2roved„by^i)jnejiQl^orjgQemo^ 
m  writingsTgnetri5y"The^parfyJo  be  chaj:g;ed_or  his  agfijat.  He  did  not 
^^egardTtie'ai^^umeirtrthat  b}'  necessary  implication  the  statute  applies 
only  to  goods  of  which  part  may  be  delivered  as  worthy  of  much  con- 
sideration. An  animal  is  not  susceptible  of  part  deliver}-,  yet  un- 
doubtedly the  sale  of  a  horse  b}'  parol  is  within  the  statute.  The 
exception  in  the  statute  is,  when  part  is  delivered  ;  but  if  there  cannot 

product  was  to  be  created  from  materials  in  no  respect  existing  in  the  form  of  paper. 
The  cases  would  have  been  more  analogous  had  the  contract  in  that  case  been  to  divide 
large  sheets  of  paper  into  small  ones,  or  to  make  packages  of  envelopes  from  ex- 
isting paper.  In  Gilman  v.  Hall,  36  N.  H.  311,  it  was  held  that  a  contract  for  sheep 
pelts  to  be  taken  from  sheep  was  a  contract  for  things  in  existence  and  a  sale." 

Bennett  v.  Nye,  4  Greene,  (la.)  410  (compare  Mighell  v.  Dougherty,  86  la.  480; 
Lewis  V.  Evans,  108  la.  296;  Dierson  v.  Fetersmeyer,  109  la.  233);  Eichelberger  v. 
McCauley,  5  H.  &  J.  213;  Bagby  »;.  Walker,  78  Md.  239;  Deal  v.  Maxwell,  51  N.  Y. 
652  ;  Higgius  v.  Murray,  4  Hun,  505,  73  N.  Y.  252  ;  Rutty  v.  Consolidated  Fruit  Jar 
Co.,  58  Hun,  611  ;  Winship  v.  Buzzard,  9  Kich.  103;  Suber  v.  Pullin,  1  S.  C.  273; 
Mattison  v.  Wescott,  13  Vt.  258 ;  Ellison  v.  Briirham,  38  Vt.  64 ;  Forsyth  v.  Mann, 
68  Vt.  116,  ace.     See  also  Hientz  v.  Burkhard,  29  (^reg.  55. 

1  Webb  V.  Baltimore,  &c.  Railroad,  77  Md.  92,  ace. 

2  Iliggs  V.  Magruder,  2  Cranch,  143;  Hudson  v.  Weir,  20  Ala.  294;  Gooch  v. 
Holmes,  41  Me.  523  ;  Fray  v.  Mitchell,  60  Me.  430,  435  ;  Somerliy  v.  Buntin,  118  Mass. 
279,  ace;  Vawter  i'.  Griffin,  40  Ind  593  ;  Whittemore  v.  Gibbs,  24  N.  H.  484,  contra. 
See  also  Howe  v.  Jones,  57  La.  130. 

s  Mayer  v.  Child,  47  Cal.  142 ;  Southern  Trust  Co.  v.  Cole,  4  Fla.  359  ;  Banta  v. 
Chicago,  172  111.  204,  218  ;  Colviu  v.  Williams,  3  H.  &  J.  38  (overruled)  ;  Tisdale  v. 
Harris,  20  Pick.  9  ;  Boardman  v.  Cutter,  128  Mass.  388 ;  Fine  v.  Hornsby,  2  Mo.  App. 
61  ;  Bernhardt  v.  Walls,  29  Mo.  App.  206,  ace. 


SECT.    I.] 


BAIiDEY   V.   PARKER. 


603 


be  a  deliver}'  in  part,  the  exception  cannot  exist  to  take  the  case  out  of 
the  general  proliibition. 

Boncls  and  ^morlgao;es_werjLe^Qrg35ly  h^d  to  begqods  and  chattels^ 
in'^ferhunelTExecutors  of  Braj-,  1  Harr.  53.  That  was  an  action  of 
Trover  for  a  bond  and  mortgage.  Chief  Justice  Hornblower,  in  deciding 
the  case,  said  that,  although  the  attachment  act  and  letters  of  adminis- 
tration seem  to  distinguish  between  rights  and  credits  and  goods  and 
chattels,  and  although  an  execution  against  the  latter  will  not  reach 
bonds  and  notes,  3'et  there  is  a  sense  in  which  upon  sound  legal  princi- 
ples such  securities  are  goods  and  chattels. 

This  sense  ought  to  be  applied  to  these  words  in  this  case. 

Reasonand_^o^nd^4^oUcj|^ 
ties  for  monej^should  besubject  to  the  reasonable  j;estiictions^  .E^^^ 
vjdJ^d^^!^J35H^^|^^^Ute^^§i4^  ^^^^  ^^  other  persona]^ 

propertv.  " 

^"xEe  words  "  goo(Jgj_jw^res,  and_meril^an^^  the  sixth  section  of 

the  statute  ar£_^5[uiv^J.Qnt,iXLlllfi-tei:mi^  property^'  and  are 

intended  to  include  whatever  is  not  embraced  b}'  the  phrase  "lands, 
tenements,  and  hereditaments  "  in  the  preceding  section.  In  xx\y  judg- 
ment, the  contract  sued  upon  is  within  the  statute  of  frauds,  and  it  was 
error  in  the  court  below  to  refuse  to  nonsuit.^ 


BALDEY   AND   Another  v.    PARKER. 
In  the  King's  Bench,  June  5,  1823. 

\IUported  in  2  Barnewall  §-  Cresswell,  37.] 


si 


Assumpsit  for  goods  sold  and  delivered.  Plea,  general  issue.  At 
the  trial  before  Abbott,  C.  J.,  at  the  London  Sittings  after  Trinity  Term 
1822,  the  following  appeared  to  be  the  facts  of  the  case.  The  plain- 
tiffs are  linen-drapers,  and  the  defendant  came  to  their  shop  and 
bargained  for  various  articles.     A  separate  price  was  agreed  upon  for 

1  In  some  iurjadictipn  choses.in  action  are_expressVy_ included  by  the jwqrds  of  thg 
statute.  Hlnchman  v.  Lincoln,  124  U.  S.  38;  Artcher  v.  Zeh,  5  Hill.  200;  People  v. 
UeeOe^  1  Barb.  379 ;  Peabody  v.  Speyers,  56  N.  Y.  200 ;  Tompkins  v.  Sheehan,  158 
N.  Y.  617  (compare  Aguirre  v.  Allen,  10  Barb.  74  ;  Kessel  v.  Albetis,  56  Barb.  362) ; 
Spear  v.  Bach,  82  Wis.  192. 

In  Somerby  v.  Buntin,  118  Mass.  279  (as  also  in  Jones  v.  Reynolds,  120  N.  Y.  213), 
it  was  decided  that  an  oral  agreement  for  the  sale  of  an  interest  in  an  invention  before 
letters-patent  had  been  obtained  could  be  enforced,  and  the  court  said :  The  words  of 
the  statute  have  never  yet  been  extended  by  any  court  beyond  securities  which  are 
subjects  of  common  sale  and  barter,  and  whicli  have  a  visible  and  palpable  form." 
These  words  are  quoted  with  approval  in  Meehan  v.  Sharp,  151  JIass.  564,  and  in  Vin- 
cent V.  Vieths,  60  Mo.  App.  9.  See  also  Banta  v.  Chicago,  172  111.  204,  218.  In 
Walker  v.  Supple,  54  Ga.  178,  however,  a  sale  of  book  accounts  was  held  within  the 
statute. 

No  choses  in  action  are  held  within  the  English  Act.  Colonial  Bank  v.  Whinney, 
30  Ch.  D.  261,  283.     Compare  Evans  v.  Davies,  [1893]  2  Ch.  216. 


604  BALDEY   V.   PARKER.  [CFIAP.   IV. 

each,  and  no  one  article  was  of  the  value  of  10/.  Some  were  measured 
in  his  presence,  some  he  marked  with  a  pencil,  others  he  assisted  in 
cutting  from  a  larger  bulk.  He  then  desired  an  account  of  the  whole 
to  be  sent  to  his  house,  and  went  away.  A  bill  of  parcels  was  accord- 
ingly made  out  and  sent  by  a  shopman.  The  amount  of  the  goods  was 
70Z.  The  defendant  looked  at  the  account,  and  asked  what  discount 
would  be  allowed  for  ready  money,  and  was  told  51.  per  cent.  ;  he 
replied  that  it  was  too  little,  and  requested  to  see  the  person  of  whom 
he  bought  the  goods  (Baldey),  as  he  could  bargain  with  him  respecting 
the  discount,  and  said  that  he  ought  to  be  allowed  20/.  per  cent.  The 
goods  were  afterwards  sent  to  the  defendant's  house,  and  he  refused  to 
accept  them.  The  Lord  Chief  Justice  thought  that  this  was  a  contract 
for  goods  of  more  than  the  value  of  10/.  within  the  meaning  of  the 
seventeenth  section  of  the  statute  of  frauds,  and  not  within  any  of 
the  exceptions  there  mentioned,  and  directed  a  nonsuit;  but  gave 
the  plaintiffs  leave  to  move  to  enter  a  verdict  in  their  favor  for  70/. 
A  rule  having  accordingly  been  obtained  for  that  purpose, 

Scarlett  and  JEJ.  Lawes  now  showed  cause. 

Denman  and  Piatt,  contra. 

Abbott,  C.  J.  We  have  given  our  opinion  upon  more  than  one  oc- 
casion, that  the  29  Car.  II.  c.  3,  is  a  highly  beneficial  and  remedial  statute. 
We  are  thereforgboundsoto  construe  it  as  to  furthj^r__the^bject  and 
intention  of  the  legislature,  ^Hich  wasihe  grevention_of  fraud.  It 
appeared'^rom  tKe'factsrof 'JM§''ca5ertIiat  the  defendant  went  into  the 
plaintiffs'  shop  and  bargained  for  various  articles.  Some  were  severed 
from  a  larger  bulk,  and  some  he  marked  in  order  to  satisf}''  himself 
that  the  same  were  afterwards  sent  home  to  him.  The  first  question 
is,  whether  this  was  one  entire  contract  for  the  sale  of  all  the  goods. 
By  holding  that  it  was  not,  we  should  entirely  defeat  the  object  of  the 
statute.  For  then  persons  intending  to  buy  many  articles  at  one  time, 
amounting  in  the  whole  to  a  large  price,  might  withdraw  the  case  from 
the  operation  of  the  statute  bj'  making  a  separate  bargain  for  each 
article.  Looking  at  the  whole  transaction,  I  am  of  opinion  that  the 
parties  must  be  considered  to  have  made  one  entire  contract  for  the 
whole  of  the  articles.  The  plaintiffs  therefore  cannot  maintain  this 
action  unless  the}'  can  show  that  the  case  is  within  the  exception  of  the 
29  Car.  II.  c.  3,  s.  17.  Now  the  words  of  that  exception  are  peculiar, 
*•'  except  the  buyer  shall  accept  part  of  the  goods  so  sold,  and  actually 
receive  the  same."  It  would  be  difficult  to  find  words  more  distinctly 
denoting  an  actual  transfer  of  the  article  from  the  seller,  and  an  actual 
taking  possession  of  it  by  the  buyer.  If  we  held  that  such  a  transfer 
and  acceptance  were  complete  in  this  case,  it  would  seem  to  follow  as  a 
necessary  consequence  that  the  vendee  might  maintain  trover  without 
paying  for  the  goods,  and  leave  the  vendor  to  this  action  for  the  price. 
Such  a  doctrine  would  be  highly  injurious  to  trade,  and  it  is  satis- 
factory to  find  that  the  law  warrants  us  in  saying  that  this  transaction 
had  no  such  effect. 


SECT.   I.]  BALDEY   V.   PARKER.  606 

HoLROTD,  J.  I  am  of  the  same  opinion.  The  intention  of  the 
statute  was  that  certain  requisites  should  be  observed  in  all  contracts 
for  the  sale  of  goods  for  the  price  of  10^.  and  upwards.  This  was  all 
one  transaction,  though  composed  of  different  parts.  At  first  it  appears 
to  have  been  a  contract  for  goods  of  less  value  than  10^.,  but  in  the 
course  of  the  dealing  it  grew  to  a  contract  for  a  much  larger  amount. 
At  last  therefore  it  was  one  entire  contract  within  the  meaning  and 
mischief  of  the  statute  of  frauds,  it  being  the  intention  of  that 
statute  that  where  the  contract,  either  at  the  commencement  or  at  the 
conclusion,  amounted  to  or  exceeded  the  value  of  10/.  it  should  not 
bind  unless  the  requisites  there  mentioned  were  complied  with.  The 
danger  of  false  testimony  is  quite  as  great  where  the  bargain  is  ulti- 
mately of  the  value  of  10/.  as  if  it  had  been  originally  of  that  amount. 
It  must  therefore  be  considered  as  one  contract  within  the  meaning  of 
the  act.  With  respect  to  the  exception  in  the  seventeenth  section,  it 
may  perhaps  have  been  the  intention  of  the  legislature  to  guard 
against  mistake,  where  the  parties  mean  honestly  as  well  as  against 
wilful  fraud  ;  and  the  things  required  to  be  done  will  have  the  effect  of 
answering  both  those  ends.  The  words  are,  "•  except  the  buyer  shall 
accept  part  of  the  goods  so  sold,  and  actually  receive  the  same,  or  give 
something  in  earnest  to  bind  the  bargain,  or  in  part  of  payment,  or 
that  some  note  or  memorandum  in  writing  of  the  said  bargain  be  made 
and  signed  by  the  parties  to  be  charged  by  such  contract,  or  their 
agents  thereunto  lawfully  authorized."  Each  of  those  particulars 
either  shows  the  bargain  to  be  complete,  or  still  farther,  that  it  has 
been  actually  in  part  performed.  The  change  of  possession  does  not 
in  ordinary  cases  take  place  until  the  completion  of  the  bargain  :  part 
payment  also  shows  the  completion  of  it ;  and  in  like  manner  a  note 
or  memorandum  in  writing  signed  by  the  parties  plainly  proves  that 
they  understood  the  terms  upon  which  they  were  dealing,  and  meant 
finally  to  bind  themselves  by  the  contract  therein  stated.  In  the  pres- 
ent case  there  is  nothing  to  show  that  some  further  arrangement 
might  not  remain  unsettled  after  the  price  for  each  article  has  been 
agreed  upon.  There  was  neither  note  nor  memorandum  in  writing ; 
no  part  of  the  price  was  paid,  nor  was  there  anj-  such  change  of  pos- 
session as  that  contemplated  b}'  the  statute.  Upon  a  sale  of  specific 
goods  for  a  specific  price,  b}'  parting  with  the  possession  the  seller 
parts  with  his  lien.  The  statute  contemplates  such  a  parting  with  the 
possession  ;  and  therefore  as  long  as  the  seller  preserves  his  control 
over  the  goods,  so  as  to  retain  his  lien,  he  prevents  the  vendee  from 
accepting  and  receiving  them  as  his  own,  within  the  meaning  of  the 
statute. 

Hide  discharged} 

1  Batlet  and  Best,  J.T.,  delivered  brief  concurring  opinions. 

See  further  Emmerson  v.  Heelis,  2  Taunt,  38;  Elliott  v.  Thomas,  3  M.  &  W.  170; 
Scott  V.  Eastern  Counties  Ry.  Co.,  12  M.  &  W.  33  ;  Bigg  v.  Whisking,  14  C.  B.  195  ; 
Weeks  v.  Crie,  94  Me.  4.58;  Jenness  v.  Wendell,  51  N.  H.  63  ;  AUard  v.  Greasert,  61 
N.  Y.  1  ;  Tompkins  v.  Sheehan,  158  N.  Y.  617. 


606  CUSACK   V.   ROBINSON.  [CHAP.   IV. 

SECTION   11. 

SATISFACTION  OF  THE   STATUTE. 


j^      CUSACK   AND   Others   v.    ROBINSON. 
Il^^  In  the  Queen's  Bench,  May  25,  1861. 

[Reported  in  1  Best  ^  Smith,  299.] 

Declaration  for  goods  sold  and  delivered,  and  goods  bargained  and 
sold.  Plea,  never  indebted.  At  the  trial,  before  Blackburn,  J.,  at 
the  Liverpool  Winter  Assizes  in  1860,  it  appeared  that  the  defendant, 
who  was  a  London  merchant,  on  the  24th  October,  1860,  at  Liverpool, 
called  on  the  plaintiffs,  who  are  importers  of  Canadian  produce,  and 
said  he  wanted  to  buy  from  150  to  200  firkins  of  Canadian  butter.  He 
then  went  with  one  of  the  plaintiffs  to  their  cellar,  where  he  was 
shown  a  lot  of  156  firkins  of  butter,  "  Ex-Bohemian,"  belonging  to 
the  plaintitfs,  which  he  then  had  the  opportunity'  of  inspecting,  and  in 
fact  he  did  open  and  inspect  six  of  the  firkins  in  that  lot.  After  that 
examination,  the}-  went  to  another  cellar  to  see  other  butter,  which, 
however,  did  not  suit  the  defendant.  At  a  later  period  of  the  same 
day,  tlie  plaintiffs  and  the  defendant  made  a  verbal  agreement,  by 
which  the  defendant  agreed  to  buy  that  specific  lot  of  156  firkins,  at 
lis.  per  cwt.  When  the  price  had  been  agreed  on,  the  defendant 
took  a  card  on  which  his  name  and  address  in  London  were  written 
''  Edmund  Robinson,  1,  Wellington  Street,  London  Bridge,  London," 
and  wrote  on  it  "  156  firkins  butter  to  be  delivered  at  Fenning's 
Wharf,  Tooley  Street."  He  gave  this  to  the  plaintiffs,  and  at  the 
same  time  said  that  his  agents,  Messrs.  Clibborn,  at  Liverpool,  would 
give  directions  how  the  goods  were  to  be  forwarded  to  Fenning's 
Wharf.  The  plaintiffs,  by  Clibborn's  directions,  delivered  the  butter 
to  Pickford's  carts  to  be  forwarded  to  the  defendant  at  Fenning's 
Wharf.  The  plaintiffs  sent  an  invoice,  dated  the  25th  October,  1860, 
to  the  address  on  the  defendant's  card.  They  received  in  answer 
a  letter  purporting  to  come  from  a  clerk  in  the  defendant's  oflSce, 
acknowledging  the  receipt  of  the  invoice,  and  stating  that  on  the 
defendant's  return  he  would  no  doubt  attend  to  it.  There  was  no 
evidence  that  the  writer  of  this  letter  had  any  authority  to  sign  a 
memorandum  of  a  contract.  On  the  27th  October  the  plaintiffs,  in 
Liverpool,  received  a  telegram  from  the  defendant  in  London,  in 
effect  asserting  that  the  butters  had  been  sold  b}'  the  plaintiffs  sub- 
ject to  a  warranty,  that  was  equal  to  a  sample,  but  that  they  were 
not  equal  to  sample,  and  therefore  would  be  returned.  The  plaintiffs 
replied  by  telegram  that  there  was  no  such  wan-anty,  and  they  must 
be  kept.     A  clerk  at  Fenuing's  Wharf  proved  that  Messrs.  Fennings 


SECT.   II.]  CXJSACK   V.   KOBINSOIT.  607 

stored  goods  for  their  customers,  and  had  a  butter  warehouse ;  that 
the  defendant  had  used  the  warehouse  for  fifteen  years,  and  was  in 
the  habit  of  keeping  his  butters  there  till  he  sold  them.  On  the  26th 
October,  Pickford  &  Co.  had  delivered  a  part  of  the  156  firkins  in 
question  at  the  warehouse,  and  delivered  the  residue  on  the  morning 
of  the  27th  October,  The  witness  could  not  say  whether  an}'  one 
came  to  inspect  them  or  not,  but  he  proved  that  they  were  delivered 
up  by  Fenning  to  Pickford  &  Co.  under  a  deliver}"  order  from  the 
defendant  dated  27th  October.  The  defendant's  counsel  admitted 
that  it  must  be  taken  that  the  sale  was  not  subject  to  any  warranty  ; 
but  objected  that  the  price  of  the  goods  exceeded  101. ,  and  that  there 
was  nothing  proved  to  satisfy  the  requisitions  of  the  statute  of  frauds. 
The  verdict  was  entered  for  the  plaintiflTs  for  420/.  10s.  Id.,  with 
leave  to  the  defendant  to  move  to  enter  a  nonsuit,  if  there  was  no 
evidence  proper  to  be  left  to  the  jury  either  of  a  memorandum  of  the 
contract  or  of  an  acceptance  and  actual  receipt  of  the  goods. 

In  Hilary  term,  1861,  Edward  James  obtained  a  rule  nisi  accord- 
ingly, citing  Nicholson  v.  Bower,  1  E.  &  E.  172,  which  rule  was 
argued  at  the  sittings  in  banc  after  Easter  term,  on  the  9th  May, 
before  Hill  and  Blackburn,  JJ. 

Mellish  and  Quain  showed  cause. 

Milward,  in  support  of  the  rule. 

The  judgment  of  the  court  was  now  delivered  by 

Blackburn,  J.  (After  fully  stating  the  facts  his  lordship  proceeded). 
It  was  not  contended  that  there  was  any  sufficient  memorandum  in 
writing  in  the  present  case ;  but  it  was  contended  that  there  was 
suflScient  evidence  that  the  defendant  had  accepted  the  goods  sold,  and 
actually  received  the  same ;  and,  on  consideration,  we  are  of  that 
opinion. 

The  words  of  the  statute  are  express,  that  there  must  be  an 
acceptance  of  the  goods,  or  part  of  them,  as  well  as  an  actual  receipt ; 
and  the  authorities  are  very  numerous  to  show  that  both  these  requisites 
must  exist  or  else  the  statute  is  not  satisfied.  In  the  recent  case 
of  Nicholson  v.  Bower,  supra,  which  was  cited  for  the  defend- 
ant, 141  quarters  of  wheat  were  sent  by  a  railway,  addressed  to  the 
vendees.  They  arrived  at  their  destination,  and  were  there  ware- 
housed by  the  railway  company  under  circumstances  that  might  have 
been  held  to  put  an  end  to  the  unpaid  vendor's  rights.  But  the 
contract  was  not  originally  a  sale  of  specific  wheat,  and  the  vendees 
had  never  agreed  to  take  those  particular  quarters  of  wheat ;  on  the 
contrary,  it  was  shown  to  be  usual,  before  accepting  wheat  thus  ware- 
housed, to  compare  a  sample  of  the  wheat  with  the  sample  by  which 
it  was  sold  ;  and  it  appeared  that  the  vendees,  knowing  that  they 
were  in  embarrassed  circumstances,  purposely  abstained  from  accept- 
ing the  goods,  and  each  of  the  judges  mentions  that  fact  as  the  ground 
of  their  decision.  In  Meredith  v.  Meigh,  2  E.  &  B.  364,  the  goods, 
which  were  not  specified  in  the  original  contract,  had  been  selected 


608  CUSACK   V.   ROBINSON.  [cHAP.   TV. 

b}'  the  vendor,  and  put  on  board  ship  by  the  directions  of  the  vendee, 
so  that  they  were  in  the  hands  of  a  carrier  to  convey'  them  from  the 
vendor  to  the  vendee.  It  was  there  held,  in  conformity  with  Hanson 
V.  Arraitage,  5  B.  «fe  Aid.  557,  that  the  carrier,  though  named  by  the 
vendee,  had  no  authority  to  accept  the  goods.  And  in  this  we  quite 
agree:  for,  though  the  selection  of  the  goods  bj*  the  vendor,  and 
putting  them  in  transit,  would,  but  for  the  statute,  have  been  a  suflS- 
cient  delivery  to  vest  the  property  in  the  vendee  ;  it  could  not  be  said 
that  the  selection  by  the  vendor,  or  the  receipt  by  the  carrier,  was  an 
acceptance  of  those  particular  goods  by  the  vendee. 

In  Baldey  v.  Parker,  2  B.  &  C.  37,  which  was  much  relied  on  by 
Mr.  Milward  in  arguing  in  support  of  this  rule,  the  ground  of  the 
decision  was  that  pointed  out  by  Holroyd,  J.,  who  sa^'s,  p.  44 :  "  Upon 
a  sale  of  specific  goods  for  a  specific  price,  by  parting  with  the  pos- 
session the  seller  parts  with  his  lien.  The  statute  contemplates  such 
a  parting  with  the  possession  ;  and  therefore  as  long  as  the  seller 
preserves  his  control  over  the  goods,  so  as  to  retrain  his  lien,  he  pre- 
vents the  vendee  from  accepting  and  receiving  them  as  his  own, 
within  the  meaning  of  the  statute."  The  principle  here  laid  down  is 
that  there  cannot  be  an  actual  receipt  b}'  the  vendee  so  long  as  the 
goods  continue  in  the  possession  of  the  seller,  as  unpaid  vendor,  so 
as  to  preserve  his  lien ;  and  it  has  been  repeatedly  recognised.  But 
though  the  goods  remain  in  the  personal  possession  of  the  vendor,  yet, 
if  it  is  agreed  between  the  vendor  and  the  vendee  that  the  possession 
shall  thenceforth  be  kept,  not  as  vendor  hut  as  bailee  for  the  purchaser, 
the  right  of  lien  is  gone,  and  then  there  is  a  sufficient  receipt  to  satisfy 
the  statute ;  Marvin  v.  Wallis,  6  E.  &  B.  726 ;  Beaumont  v.  Brengeri, 
5  C.  B.  301.  In  both  of  these  cases  the  specific  chattel  sold  was 
ascertained,  and  there  appear  to  have  been  acts  indicating  accept- 
ance subsequent  to  the  agreement  which  changed  the  nature  of  the 
possession. 

In  the  present  case  there  was  ample  evidence  that  the  goods,  when 
placed  in  Fenning's  Whai'f,  were  put  under  the  control  of  the  defend- 
ant to  await  his  further  directions,  so  as  to  put  an  end  to  any  right 
of  the  plaintiffs  as  unpaid  vendors,  as  much  as  the  change  in  the 
nature  of  the  possession  did  in  the  cases  cited.  There  was  also 
suflBcient  evidence  that  the  defendant  had,  at  Liverpool,  selected  these 
specific  156  firkins  of  butter  as  those  which  he  then  agreed  to  take  as 
his  property  as  the  goods  sold,  and  that  he  directed  those  specific 
firkins  to  be  sent  to  London.  This  was  certainly  evidence  of  an 
acceptance,  and  the  onlj*  remaining  question  is,  whether  it  is  necessary 
that  the  acceptance  should  follow,  or  be  contemporaneous  with  the 
receipt,  or  whether  an  acceptance  before  the  receipt  is  not  suflScient. 
In  Saunders  v.  Topp,  4  Exch.  390,  which  is  the  case  in  which  the 
facts  approach  nearest  to  the  present  case,  the  defendant  had,  accord- 
ing to  the  finding  of  the  jury,  agreed  to  buy  from  the  plaintiff  45  couple 
of  sheep  which  the   defendant,  the  purchaser,  had  himself  selected, 


SECT,   n.j  CUSACK   V.   ROBINSON.  609 

and  the  plaintiff  had  by  his  directions  put  them  in  tne  defendant's 
field.  Had  the  ease  stopped  there,  it  would  have  been  identical  with 
the  present.  But  there  was,  in  addition,  some  evidence  that  the 
defendant,  after  seeing  them  in  the  field  counted  them  and  said  it  was 
all  right,  and,  as  this  was  some  evidence  of  an  acceptance  after  the 
receipt,  it  became  unnecessary  to  decide  whether  the  acceptance  under 
the  statute  must  follow  the  delivery.  Parke,  B.,  from  the  report  of 
his  observations  during  the  argument,  seems  to  have  attached  much 
importance  to  the  selection  of  particular  sheep  b}-  the  defendant,  but 
in  his  judgment  he  abstains  from  deciding  on  that  ground,  though 
certainl}'  not  expressing  any  opinion  that  the  acceptance  must  be 
subsequent  to  the  delivery.  The  other  three  Barons  —  Alderson, 
Rolfe,  and  Piatt  —  express  an  inclination  of  opinion  that  it  is  necessarj", 
under  the  statute,  that  the  acceptance  should  be  subsequent  to  or 
contemporaneous  with  the  receipt;  but  thev  expresslj'  abstain  from 
deciding  on  that  ground.  In  the  elaborate  judgment  of  Lord  Camp- 
bell in  Morton  v.  Tibbet,  15  Q.  B.  428,  in  which  the  nature  of  an 
acceptance  and  actual  receipt  sufficient  to  satisfy  the  statute  is  fully 
expounded,  he  says  (p.  434)  :  "  The  acceptance  is  to  be  something 
which  is  to  precede,  or  at  an}'  rate  to  be  contemporaneous  with,  the 
actual  receipt  of  the  goods,  and  is  not  to  be  a  subsequent  act  after 
the  goods  have  been  actually  received,  weighed,  measured,  or  ex- 
amined." The  intention  of  the  legislature  seems  to  have  been  that  the 
contract  should  not  be  good  unless  partial  I}-  executed,  and  it  is 
partially  executed  if,  after  the  vendee  has  finall}'  agreed  on  the  specific 
articles  which  he  is  to  take  under  the  contract,  the  vendor,  b}-  the 
vendee's  directions,  parts  with  the  possession,  and  puts  them  under 
the  control  of  the  vendee  so  as  to  put  a  complete  end  to  all  the  rights 
of  the  unpaid  vendor  as  such.  We  think,  therefore,  that  there  is 
nothing  in  the  nature  of  the  enactment  to  imply  an  intention,  which 
the  legislature  has  certain!}'  not  in  terms  expressed,  that  an  accept- 
ance prior  to  the  receipt  will  not  suffice.  There  is  no  decision  putting 
this  construction  on  the  statute,  and  we  do  not  think  we  ought  so  to 
construe  it. 

We  are,  therefore,  of  opinion  that  there  was  evidence  in  this  case  to 
satisfy  the  statute,  and  that  the  rule  must  be  discharged. 

Ride  discharged,} 

1  "There  is  nothing  in  the  statute  which  fixes  or  limits  the  time  within  which  a 
purchaser  is  to  accept  and  receive  part  of  the  goods  sold,  or  give  something  in  earnest 
to  bind  the  bargain,  or  in  part  payment."     Marsh  v.  Hyde,  3  Gray,  331. 

The  English  Sale  of  Goods  Act,  provides,  §  4  (3) :  "  There  is  an  acceptance  of 
goods  within  the  meaning  of  this  section  when  the  buyer  does  any  act  in  relation  to 
the  goods  which  recognizes  a  pre-e.xisting  contract  of  sale  whetlier  there  be  an 
acceptance  in  performance  of  the  contract  or  not."  This  definition  follows  Kibble  v. 
Gough,  38  L,  T.  R.  204,  and  Tage  v.  Morgan,  15  Q.  B.  D.  228.  Compare  Taylor  v. 
Smith,  [1893]  2  Q.  B.  65.  Under  this  definition  examining  goods  and  rejecting 
them  is  an  acceptance.     Abbott  v.  Wolsey,  |1895]  2  Q.  B.  97. 

In    America,    this   forced   construction   does   not    prevail.     See   Browne   on   the 
Statute  of  Frauds,  chap.  xr. 
VOL.    I.  — .T9 


610  WALKER   V.    NUSSEY.  [CHAP.   IV. 


rj^ 


WALKER  V.   NUSSEY. 
In  the  Exchequer,  January  18,  1847. 


[Reported  in  16  Meeson  ^-  Welshy,  302.] 

Debt  for  goods  sold  and  delivered,  and  on  an  account  stated. 
Pleas, — 1st,  never  indebted;  2d,  a  set-off  for  goods  sold  and 
delivered,  and  on  an  account  stated.  Issues  thereon.  At  the  trial, 
before  tlie  undersheriff  of  Yorkshire,  it  appeared  that,  the  defendant 
having  sold  goods  to  the  plaintiff  to  the  amount  of  Al.  14s.  lie?.,  the 
defendant,  on  a  subsequent  occasion,  bought  of  him  a  lot  of  leather, 
of  two  sorts,  by  sample.  It  was  then  verball}'  agreed  between  them, 
that  the  41.  lis.  lid.  due  to  the  defendant  should  go  in  part  payment 
by  him  to  the  plaintiff  for  the  leather.  Next  day  the  plaintiff  sent  ia 
the  goods  to  the  defendant,  with  this  invoice  :  — 

"Halifax,  Oct.  14th,  1846. 

"  Mr.  William  Nussey,  bought  of  Thomas  Walker. 

£  s.  d. 

Dressed  hide  bellies,  287  at  9rf 10  15  3 

Insole,  376  at  6^ 10  3  8 

20  18  11 

By  your  account  against  me 4  14  11 " 

The  defendant  returned  the  goods  within  two  days  as  inferior  to 
sample,  and  wrote  to  the  plaintiff  to  pay  him  the  41.  14s.  lid.  The 
plaintiff  refused  to  receive  the  goods,  and  brought  this  action,  stating, 
in  his  particulars  of  demand,  that  the  action  was  brought  to  recover 
the  sum  of  16^.  4s.,  as  the  "  balance  of  the  following  account"  (setting 
out  the  above  invoice). 

The  undersheriff  ruled,  that  there  was  nothing  to  show  that  the 
41.  14s.  lid.  had  been  given  by  the  defendant  in  earnest,  or  part  of 
payment,  under  29  Car.  II.  c.  3,  s.  17,  and  left  nothing  to  the  jury,  except 
on  the  point  of  acceptance  of  the  goods  by  the  defendant,  directing 
them  to  find  for  him  if  they  thought  he  returned  the  goods  in  a  reason- 
able time,  without  taking  to  them.  The  jury  found  a  verdict  for  the 
defendant  on  both  issues. 

Pollock,  C.  B.  I  think  no  rule  ought  to  be  granted.  The 
plaintiff  sues  for  goods  sold  and  delivered  by  him,  to  the  defendant, 
above  101.  in  value,  and  it  was  admitted  that  the  defendant  had 
previously  sold  him  goods  for  41.  lis.  lid.  On  the  new  dealing 
between  them  the  agreement  was,  that  the  sum  should  be  taken  as 
part  payment  by  the  defendant,  and  that  he  should  only  pay  the 
plaintiff  the  difference  between  that  sum  and  the  amount  of  the  goods 
bought  from  him.  This  contract  was  verbal ;  but  it  is  argued  that 
the  41.  14s.  lid.  was  a  part  pa3-raent  b}"  the  defendant,  so  as  to  take 
the  case  out  of  the  statute  of  frauds.     But  I  think  it  was  not.     Here 


SECT,   n.]  WALKER   V.   NUSSEY.  611 

there  was  nothing  but  one  contract,  whereas  the  statute  requires  a 
contract,  and,  if  it  be  not  in  writing,  something  besides.  The  question 
here  is,  whether  what  took  place  amounted  to  a  giving  of  earnest  or  in 
part  of  payment  at  ttie  time  of  the  bargain,  tlie  goods  bought  by  the 
defendant  not  having  been  then  dehvered  to  him  by  the  plaintiff. 
Nothing  turns  on  the  effect  of  their  subsequent  deliver^'.  Had  these 
parties  positively  agreed  to  extinguish  the  debt  of  Al.  odd,  and  receive 
the  plaintiff's  goods  pro  tanto  instead  of  it,  the  law  might  have  been 
satisfied,  without  the  ceremony  of  paying  it  to  the  defendant,  and 
repaying  it  by  him.  But  the  actual  contract  did  not  amount  to  that, 
and  there  has  been  no  part  paj'ment  within  the  statute. 

Pakke,  B.  I  am  of  the  same  opinion,  and  think  the  ruling  at 
the  trial  was  right.  The  facts  seem  to  be  these.  The  plaintiff 
owed  the  defendant  a  sum  of  Al.  14s.  lid.  The  parties  then  verbally 
agreed  that  the  plaintiff  should  sell  to  the  defendant  goods  above 
lOZ.  in  value,  according  to  a  given  sample,  the  plaintiff's  debt  to  go 
in  part  pa3'ment,  and  the  residue  to  be  paid  by  the  defendant.  No 
evidence  was  given  of  the  actual  payment  or  discharge  of  the  debt 
due  from  the  plaintiff,  so  that  all  rested  in  the  agreement  raereh'.  If 
Mr.  Addison  could  have  shown  the  contract  to  have  been,  that  the 
parties  were  to  be  put  in  the  same  situation  at  that  time,  as  if  the 
plaintiff's  debt  to  the  defendant  had  then  been  paid,  or  as  if  it  had  been 
paid  to  the  defendant,  and  repaid  by  him  to  the  plaintiff  as  earnest, 
the  statute  might  have  been  satisfied,  without  any  money  having 
passed  in  fact ;  but  the  agreement  was  in  fact,  that  the  goods  should 
be  delivered  by  the  plaintiff  b^'  way  of  satisfaction  of  the  debt  pre- 
viously due  from  him  to  the  defendant,  and  that  the  defendant  should 
j)a3'  for  the  rest.  Then  the  buj-er  did  not  "  give  something  in  earnest 
t,o  bind  the  bargain,  or  in  part  of  pa^'ment."  The  "part  payment" 
mentioned  in  the  statute  must  take  place  either  at  or  subsequent  to 
the  time  when  the  bargain  was  made.  Had  there  been  a  bargain  to 
sell  the  leather  at  a  certain  price,  and  subsequently  an  agreement  that 
the  sum  due  from  the  plaintiff  was  to  be  wiped  off  from  the  amount  of 
that  price,  or  that  the  goods  delivered  should  be  taken  in  satisfaction 
of  the  debt  due  from  the  plaintiff  ;  either  might  have  been  an  equivalent 
to  part  paj'ment,  as  an  agreement  to  set  off  one  item  against  another 
is  equivalent  to  payment  of  mone}'.  But  as  the  stipulation  respecting 
the  plaintiff's  debt  was  merely  a  portion  of  the  contemporaneous  con- 
tract, it  was  not  a  giving  something  to  the  plaintiff  by  way  of  earnest, 
or  in  part  of  payment,  then  or  subsequently. 

Alderson,  B.  The  17th  section  of  the  statute  of  frauds  implies, 
that  to  bind  a  buyer  of  goods  of  lOZ.  value,  without  writing,  he  must 
have  done  two  things  ;  first,  made  a  contract,  and  next,  he  must  have 
given  something  as  earnest,  or  in  part  payment  or  discharge  of  his 
liabilit}'.  But  where  one  of  the  terms  of  an  oral  bargain  is  for  the 
seller  to  take  something  in  part  payment  that  term  cannot  alone  be 
equivalent  to  actual  part  payment.     In  this  case,  the  part  payment,  or 


812  SALMON  FALLS   MANUF.   CO.   V.   GODDARD.       [CHAP.   IV. 

whatever  else  the  bargain  may  amount  to,  is  part  of  that  bargain  itself, 
and  cannot  be  wrested  into  proof  of  an  actual  payment,  without  repeal- 
ing the  statute,  and  suffering  a  verbal  contract  for  the  sale  of  goods  of 
lOZ.  value  to  have  effect,  without  the  safeguards  provided  by  law 
against  fraud  in  such  cases. 

Platt,  B.  In  this  case,  as  no  note  in  writing  was  signed  by  the 
parties,  it  is  clear,  from  section  17,  that  something  was  to  be  done 
by  wa}'  of  ratifying  the  bargain,  in  addition  to  it,  and  at  the  time  of 
its  being  made.  If,  on  making  the  bargain,  the  defendant  resigned 
the  debt  previously  due  to  him  from  the  plaintiff,  or  discharged  the 
plaintiff's  liability  to  that  amount,  that  would  not  be  giving  earnest  at 
the  time  of  the  bargain  made,  or  in  part  of  pa3'ment  of  the  whole  sum 
then  due  from  the  defendant.  As  to  any  discharge  of  the  plaintiff 
from  liability  to  the  defendant  at  the  time  of  making  the  second 
bargain  between  them,  no  receipt  for  the  plaintiff's  debt  was  given  by 
the  defendant,  or  any  other  thing  done  by  him,  so  that  everything 
rested  in  mere  verbal  contract,  and  nothing  in  the  evidence  makes  it 
binding  on  the  defendant.  Bule  refused.^ 


yj     THE  SALMON   FALLS   MANUFACTURING   COMPANY, 
Plaintiff  in  Error,  v.  WILLIAM   W.    GODDARD. 

Supreme  Court  of  the  United  States. 

[Reported  in  20  Curtis,  276 ;  U  Howard,  446.] 

Nelson,  J.,  delivered  the  opinion  of  the  court. 

This  is  a  writ  of  error  to  the  Circuit  Court  of  the  United  States  for  the 
district  of  Massachusetts. 

1  See  further  Raymond  v.  Colton,  104  Fed.  Rep.  219  ;  Galbraith  v.  Holmes,  15  Ind. 
App.  34 ;  Dieckman  v.  Young,  87  Mo.  App.  530 ;  Matthieasen  &  Co.  v.  McMahon,  38 
N.  J.  L.  536  ;  Artcher  v.  Zeh,  5  Hill,  200;  Edgertou  v.  Hodge,  41  Vt.  676;  Sharp  v. 
Carroll,  66  Wis.  62. 

"  In  any  view  we  can  take  of  the  matter,  we  perceive  no  sufficient  reason  for  suppos- 
ing that  the  payment,  in  the  contemplation  of  the  framers  of  this  statute,  was  restricted 
to  a  payment  made  at  the  precise  period  of  making  the  verbal  agreement.  It  is 
doubtless  true  that,  until  such  payment  of  part  of  the  purchase  money,  the  con- 
tract would  be  of  no  validity,  and  it  would  be  entirely  competent  for  either  party  to 
repudiate  it.  Neither  party  would  be  bound  by  its  terms ;  the  vendee  would  be 
under  no  obligation  to  make  a  payment,  and  the  vendor  under  no  obligation  to 
receive  one.  But  when  actually  made  and  accepted  with  the  full  concurrence  of  both 
parties,  then  the  contract  takes  effect ;  then  a  part  payment  of  the  purchase  money 
has  been  made ;  and  then  the  parties  have  made  a  valid  contract.  This  would  seem 
to  be  a  very  reasonable  construction  of  the  statute,  if  it  was  necessary  to  decide  the 
abstract  question  of  the  effect  of  payment  of  a  part  of  the  purchase  money,  after  the 
same  time  of  entering  into  a  verbal  contract."  Dewey,  J.,  Thompson  v.  Alger,  12  Met. 
428,  436. 

See  to  the  same  point,  Davis  >k  Moore,  13  Me.  424  ;  Gault  v.  Brown,  48  N.  H. 
189.  Where,  however,  as  in  New  York,  the  statute  expressly  requires  payment  at  the 
time  of  the  contract,  it  is  necessary  that  there  should  be  at  least  a  "  restatement  or 
recognition  of  the  essential  terms  of  the  contract"  when  payment  is  made.  See 
Bissell  V.  Balcom,  39  N.  Y.  275  ;  Hawley  v.  Keeler,  53  N.  Y.  114 ;  Hunter  v.  Wetsell, 
U  N.  Y.  549. 


SECT.    II.]        SALMON   FALLS   MANUF.    CO.    V.    GODDARD.  613 

The  suit  was  brought  b}-  the  plaintiffs  in  the  court  below  to  recover 
the  price  of  three  hundred  bales  of  brown,  and  of  one  hundred  cases 
of  blue  drills,  which  the}-  had  previously  sold  to  the  defendant. 

The  contract  for  the  purchase  was  made  with  the  house  of  Mason 
and  Lawrence,  agents  of  the  plaintiffs,  in  Boston,  on  the  19th  Sep- 
tember, 1850,  and  a  memorandum  of  the  same  signed  b}'  the  parties. 
A  bill  of  parcels  was  made  out  under  date  of  30th  September,  stating 
the  purchase  of  the  goods  b}-  the  defendant,  carrying  out  prices  and 
footing  up  the  amount  at  $18,565.03;  also  the  terms  of  pa3-ment  — 
note  at  twelve  months,  payable  to  the  treasurer  of  the  plaintiffs. 
This  was  forwarded  to  the  defendant  on  the  11th  October,  and  in 
pursuance  of  an  order  from  him,  the  three  hundred  bales  were  sent 
from  their  establishment  at  Salmon  Falls  by  the  railroad  and  arrived 
at  the  depot  in  Boston  on  the  30th  October,  of  which  notice  was 
given  to  the  defendant  on  the  same  day,  and  a  deliver}-  tendered.  He 
requested  that  the  goods  should  not  be  sent  to  his  warehouse,  or  place 
of  deliver}',  for  the  reason  as  subsequently  stated  b}'  his  clerk,  there 
was  no  room  for  storage.  The  agents  of  the  plaintiffs  the  next  day 
renewed  the  tender  of  delivery  b\'  letter,  adding  that  the  goods  re- 
mained at  the  depot  at  his  risk,  and  subject  to  storage,  to  which  no 
answer  was  returned.  On  the  night  of  the  4th  November,  the  rail- 
road depot  was  consumed  by  fire,  and  with  it  the  three  hundred  bales 
of  the  goods  in  question.  The  price  was  to  be  paid  b}'  a  note  at 
twelve  months,  which  the  defendant  refused  to  give,  upon  which  re- 
fusal this  action  was  brought. 

The  court  below,  at  the  trial,  held  that  the  written  memorandum, 
made  at  the  time  of  entering  into  the  contract  between  the  agents  of 
the  plaintiffs  and  the  defendant,  was  not  sufficient  to  take  the  case  out 
of  the  statute  of  frauds,  and  as  there  was  no  acceptance  of  the  goods, 
the  plaintiffs  could  not  recover. 

As  we  differ  with  the  learned  judge  who  tried  the  cause,  as  to  the 
sufficiency  of  the  written  memorandum,  the  question  upon  the  stat- 
ute is  the  onl}-  one  that  it  will  be  material  to  notice.  The  memoran- 
dum is  as  follows  :  — 

"  Sept.  19,  —  W.  W.  Goddard,  12.  mos. 

300  bales  S.  F.  drills 7J 

100  cases  blue   do 8| 

Credit  to  commence  when  ship  sails :  not  after  Dec.   1  —  de- 
livered free  of  charge  for  truckage. 

The  blues,  if  color  satisfactory  to  purchasers. 

R.    M.    M. 

W.    W.    G." 

The  statute  of  Massachusetts  on  this  subject  is  substantiall}''  the 
same  as  that  of  29  Car.  II.  c.  3,  §  17,  and  declares  that  no  contract 
for  the  sale  of  good,  &c.,  shall  be  valid,  &c.,  "  unless  some  note  or 
memorandum  in  writing  of  the  bargain  be  made,  and  signed  by  the 


614  SALMON   FALLS   MANUF.   CO.    V.    GODDAED.      [CMAP.   IV. 

part}'  to  be  charged  thereby,  or  by  some  person  thereunto  by  him 
lawful!}'  authorized." 

The  word  "  bargain,"  in  the  statute,  means  the  terms  upon  which 
the  respective  parties  contract ;  and  in  tlie  sale  of  goods,  the  terms 
of  tiie  bargain  must  be  specified  in  the  note  or  memorandum,  and 
stated  with  reasonable  certainty,  so  that  they  can  be  understood  from 
the  writing  itself,  without  having  recourse  to  parol  proof;  for,  un- 
less the  essential  terms  of  the  sale  can  be  ascertained  from  the  writing 
itself,  or  by  a  reference  contained  in  it  to  something  else,  the  memo- 
randum is  not  a  compliance  with  tlie  statute. 

This  brief  note  of  the  contract,  however,  like  all  other  mercantile 
contracts,  is  subject  to  explanation  by  reference  to  the  usage  and  cus- 
tom of  the  trade,  with  a  view  to  get  at  the  true  meaning  of  the  par- 
ties, as  each  is  presumed  to  have  contracted  in  reference  to  them. 
And  although  specific  and  express  provisions  will  control  the  usage, 
and  exclude  any  such  explanation,  ^et,  if  the  terms  are  technical,  or 
equivocal  on  the  face  of  the  instrument,  or  made  so  by  reference  to 
extraneous  circumstances,  parol  evidence  of  the  usage  and  practice 
in  the  trade  is  admissible  to  explain  the  meaning.  2  Kent  C.  556, 
and  n.  3  ;  ibid.  260,  and  n. ;  Long  on  Sales,  197,  ed.  1839 ;  1  Gale  & 
Davis,  52. 

Extraneous  evidence  is  also  admissible  to  show  that  a  person 
whose  name  is  affixed  to  tlie  contract  acted  onlv  as  an  agent,  thereby 
enabling  the  principal  either  to  sue  or  be  sued  in  his  own  name ; 
and  this,  though  it  purported  on  its  face  to  have  been  made  by  the 
agent  himself,  and  the  principal  not  named.  Higgins  v.  Senior,  8  M. 
&  Wels.  834;  Truman  v.  Loder,  11  Ad.  &  Ell.  589.^  Lord  Denham 
observed,  in  the  latter  case  :  "  That  parol  evidence  is  always  necessary 
to  show  that  the  part}-  sued  is  the  party  making  the  contract,  and 
bound  by  it ;  whether  he  does  so  in  his  own  name,  or  in  that  of  another, 
or  in  a  feigned  name,  and  whether  the  contract  be  signed  by  his  own 
hand,  or  that  of  an  agent,  are  inquiries  not  different  in  their  nature 
from  the  question,  Who  is  the  person  who  has  just  ordered  goods  in  a 
shop?  If  he  is  sued  for  the  price,  and  his  identity  made  out,  the  con- 
tract is  not  varied  b}'  appearing  to  have  been  made  by  him  in  a  name 
not  his  own."  ^ 

So  the   signature  of  one  of  the  parties   is  a  sufficient  signing   to 

1  Newell  V.  Radford,  L.  R.  3  C.  P.  52 ;  Williams  v.  Bacon,  2  Gray,  387  ;  Wheeler 
V.  Waldeu,  17  Neb.  122,  124;  Dykers  v.  Townsend,  24  N.  Y.  57,  ace.  See  also 
McConnell  v.  Brillhart,  17  111.  354." 

2  In  Bibb  v.  Allen,  149  U.  S.  481,  the  memorandum  relied  on  was  made  np  of  slip 
contracts.  The  court  said  :  "  It  is  no  valid  objection  to  these  '  slip  contracts,'  executed 
in  duplicate,  that  the  sales  purported  to  be  made  on  account  of  '  Albert,'  '  Alfred,' 
'  Alexander,'  '  Armanda,'  and  '  Winston,'  etc.,  which  names  were  adopted  by  the  de- 
fendants, and  which  represented  them  and  their  account.  Parol  evidence  was  clearly 
eompetent  to  show  that  these  fictitious  names  which  defendants  had  adopted,  repre- 
sented them  as  the  parties  for  whom  the  sales  were  made."  In  Selby  v.  Selby,  3  Meriv. 
2,  Sir  William  Grant  held  that  the  signature  "  your  affectionate  Mother"  was  insoffi* 
cieut.    The  case  is,  however,  questioned  by  Browne,  §  362. 


SECT.   II.]       SALMON   FALLS   MANUF.    CO.   V.    GODDAKD. 


615 


charge  the  firm.     Soames  v.  Spencer,  ID.  &  R.  32  ;  Long  on  Sales, 
58. 

It  has  also  been  held,  in  the  case  of  a  sold  note  which  expressed 
"  eighteen  pockets  of  hops,  at  100s.,"  that  parol  evidence  was  admis- 
sible to  show  that  the  100s.  meant  the  price  per  cwt.  Spicer  v. 
Cooper,  1  Gale  &  D.  52  ;  5  Jurist,  1036. 

The  memorandum  in  that  case  was  as  follows:  "Sold  to  Waite 
Spicer,  of  S.  Walden,  18  pos.  Kent  hops,  as  under  Jul}'  23,  1840;  10 
pos.  Barlow  East  Kent,  1839  ;  8  pos.  Springall  Goodhurst  Kent,  1839, 
100s.     Delivered,  John  Cooper." 

Evidence  was  admitted  on  the  trial  to  prove  that  the  100s.  was 
understood  in  the  trade  to  refer  to  the  price  per  cwt.,  and  the  ruling 
approved  b}*  the  king's  bench.  Lord  Denman  put  a  case  to  the 
counsel  in  the  argument  to  illustrate  his  view,  that  bears  upon  the 
case  before  us.  Suppose,  he  said,  the  contract  had  been  for  ten  butts 
of  beer,  at  one  shilling,  the  ordinary  price  of  a  gallon  —  and  intimated 
that  the  meaning  could  hardly  be  mistaken. 

Now,  within  the  principles  above  stated,  we  are  of  opinion  that' 
the  memorandum  in  question  was  a  sufficient  compliance  with  the 
statute.  It  was  competent  to  show,  b}'  parol  proof,  that  Masonj 
signed  for  the  firm  of  Mason  and  Lawrence,  and  that  the  house  was! 
acting  as  agents  for  the  plaintiffs,  a  compan}'  engaged  in  manufac-' 
turing  the  goods  which  were  the  subject  of  the  sale  ;  and  also  to 
show  that  the  figures  7J  and  8|,  set  opposite  the  three  hundred  bales; 
and  one  hundred  cases  of  goods,  meant  seven  and  a  quarter  cents,! 
and  eight  and  three  quarter  cents  per  yard. 

The  memorandum,  therefore,  coatains  the  names  of  the  sellers, , 
and  of  the  bu^'er  —  the  commodity  and  the  price  —  also  the  time  of 
credit  and  conditions  of  the  delivery ;  and,  in  the  absence  of  any 
specified  time  or  place  of  deliver}',  the  law  will  supply  the  omission, 
namely,  a  reasonable  time  after  the  goods  are  called  for,  and  usual 
iplace  of  business  of  the  purchaser,  or  his  customary  place  for  the  de-  • 
llivery  of  goods  of  this  description. 

In  respect  to  the  giving  of  the  note,  which  was  to  run  during  the 
period  of  the  credit,  it  appears  to  be  the  uniform  custom  of  the  house 
of  Mason  and  Lawrence  to  take  notes  for  goods  sold  of  this  descrip- 
tion. The  defendant  was  one  of  their  customers,  and  knew  this 
usage  ;  and  it  is  a  presumption  of  law,  therefore,  that  the  purchase 
was  made  with  reference  to  it,  there  being  no  stipulation  to  the  con- 
trary in  the  contract  of  the  parties. 

"We  are  also  of  opinion,  even  admitting  that  there  might  be  some 
obscurity  in  the  terms  of  the  memorandum,  and  intrinsic  difficulty  in 
a  proper  understanding  of  them,  that  it  would  be  competent,  under 
the  circumstances  of  the  case,  to  refer  to  the  bill  of  parcels  delivered, 
for  the  purpose  of  explanation.  We  do  not  sa}'  that  it  would  be  a 
note  in  writing,  of  itself  sufficient  to  bind  the  defendant  within  the 
statute;  though  it  might  be  to  bind  the  plaintiff. 

It  was  a  bill  of  sale  made  out   by  the  seller,  and   contained  his 


616  SALMON  FALLS   MANUF.   CO.   V.   GODDAKD.      [CHAP.   IV.' 

understanding  of  the  terms  and  meaning  of  the  contract ;  and  having 
been  received  by  tlie  buyer,  and  acquiesced  in,  (for  the  order  to  have 
the  goods  forwarded  was  given  after  it  was  received,)  the  natural 
inference  would  seem  to  be,  that  the  interpretation  given  was  accord- 
ing to  the  understanding  of  both  parties.  It  is  not  necessary-  to  say 
that  this  would  be  the  conclusion  if  the  bill  differed  materially  from 
the  written  contract;  that  might  present  a  different  question;  but 
we  think  it  is  so  connected  with,  and  naturally  resulting  from,  the 
transaction,  that  it  maj'  be  properly  referred  to  for  the  purpose  of  ex- 
plaining an}'  ambiguity  or  abbreviations,  so  common  in  these  brief 
notes  of  mercantile  contracts. 

A  printed  bill  of  parcels,  delivered  by  the  seller,  may  be  a  sufficient 
memorandum  within  the  statute  to  bind  him,  especiall}'  if  subse- 
quently recognized  by  a  letter  to  the  buyer.  2  B.  &  P.  238  D.  ;  3  Esp. 
180.  And,  generall}',  the  contract  ma}'  be  collected  from  several 
distinct  papers  taken  together,  as  forming  parts  of  an  entire  trans- 
action, if  they  are  connected  by  express  reference  from  the  one  to 
the  others.  3  Ad.  &  Ell.  355  ;  9  B.  &  Cr.  561  ;  2  ibid.  945;  3  Taunt. 
169;  6  Cow.  445;  2  M.  &  Wels.  660;  Long  on  Sales,  55,  and 
cases. 

In  the  case  before  us,  the  bill  of  parcels  is  not  only  connected  with 
the  contract  of  sale,  which  has  been  signed  by  both  parties,  but  was 
made  out  and  delivered  in  the  course  of  the  fulfilment  of  it ;  has  been 
acquiesced  in  by  the  buyer,  and  the  goods  oi'dered  to  be  delivered 
after  it  was  received.  It  is  not  a  memorandum  sufficient  to  bind  him, 
because  his  name  is  not  affixed  to  it  by  his  authority ;  but  if  he  had 
subsequently  recognized  it  by  letter  to  the  sellers,  it  might  have  been 
sufficient.     2  B.  &  P.  238  ;  2  M.  &  Wels.  653 ;  3  Taunt.  169. 

But  although  we  admit,  if  it  was  necessary  for  the  plaintiffs  to 
rely  upon  the  bill  as  the  note  or  memorandum  within  the  statute, 
they  must  have  failed,  we  think  it  competent,  within  the  principle  of 
the  cases  on  the  subject,  from  its  connection  with  and  relation  to 
the  contract,  to  refer  to  it  as  explanatory  of  any  obscurity  or  indefi- 
niteness  of  its  terms,  for  the  purpose  of  removing  the  ambiguity. 

Take,  for  example,  as  an  instance,  the  objection  that  the  price  is 
uncertain,  the  figures  7^  and  8|,  opposite  the  300  bales  and  100  cases 
of  drills,  given  without  any  mark  to  denote  what  is  intended  by  them. 

The  bill  of  parcels  carries  out  these  figures  as  so  many  cents  per 
yard,  and  the  aggregate  amount  footed  up;  and  after  it  is  received 
by  the  defendant,  and  with  a  knowledge  of  this  explanation,  he 
ordered  the  goods  to  be  forwarded. 

We  cannot  doubt  but  that  the  bill,  under  such  circumstances,  affords 
competent  evidence  of  the  meaning  to  be  given  to  this  part  of  the 
written  memorandum.  And  so,  in  respect  to  any  other  indefinite 
or  abbreviated  item  to  be  found  in  this  brief  note  of  a  mercantile 
contract. 

For  these  reasons,  we  are  of  opinion  that  the  judgment  of  the 


SECT.   IL]       salmon  falls   MANUF.   CO.   V.   GODDARD.  G17 

court  below  must  be  reversed,  and  the  proceedings  remitted,  with 
directions  to  award  a  veiiire  de  novo. 

Catron,  J.,  Daniel,  J.,^  and  Curtis,  J.,  dissented. 

Cdrtis,  J.  I  have  the  misfortune  to  differ  from  the  majority  of  my 
brethren  in  this  case,  and,  as  the  question  is  one  which  enters  into  the 
daily  business  of  merchants,  and  at  the  same  time  involves  the  construc- 
tion of  a  statute  of  the  commonwealth  of  Massachusetts,  I  think  it 
proper  to  state  brief!}'  the  grounds  on  which  I  rest  m}'  opinion. 

The  first  question  is,  whether  the  writing  of  the  19th  of  September 
is  a  sufficient  memorandum  within  the  3d  section  of  the  74th  chapter 
of  the  revised  statutes  of  Massachusetts.  The  writing  is  in  these 
words  and  figures  :  — 

"  Sept.  19.     W.  W.  Goddard,  12  mos. 

300  bales  S.  F.  drills 7J, 

100   cases   blue   "  ^. 

Cr.  to  commence  when  ship  sails;  not  after  Dec'r  1st;  delivered 
free  of  charge  for  truckage. 

r.  m.  m. 
w.  w.  o. 
The  blues,  if  color  is  satisfactory  to  purchaser." 

Does  this  writing  show,  upon  its  face,  and  without  resorting  to 
extraneous  evidence,  that  W.  W.  Goddard  was  the  purchaser  of  these 
goods?  I  think  not.  Certainl}',  it  does  not  so  state  in  terms;  nor 
can  I  perceive  how  the  fact  can  be  collected  from  the  paper,  by  any 
certain  intendment.  If  it  be  assumed  that  the  sale  was  made,  and  that 
Goddard  was  a  party  to  the  trans.action,  what  is  there,  on  the  face 
of  the  paper,  to  show  whether  Goddard  sold  or  bought?  Extraneous 
evidence  that  he  was  the  seller  would  be  just  as  consistent  with  this 
writing  as  extraneous  evidence  that  he  was  the  purchaser.  Suppose 
the  fact  had  been  that  Mason  was  the  purchaser,  and  that  the  writing 
might  be  explained  by  evidence  of  that  fact ;  it  would  then  be  read 
that  Goddard  sold  to  Mason,  on  twelve  months'  credit ;  and  this  evi- 
dence would  be  consistent  with  everything  which  the  paper  contains, 
because  the  paper  is  wholly  silent  as  to  the  fact  whether  he  was  the 
seller  or  the  purchaser.  In  Bailey  et  al.  v.  Ogden,  3  Johns.  399,  an 
action  for  not  accepting  sugars,  the  memorandum  was :  — 

"  14  December. 

J.  Ogden  and  Co.     Bailey  and  Bogart. 


T^^:f^.     \      60  and  90  days. 


Debenture  part  pay." 

Mr.  Justice  Kent,  who  delivered  the  opinion  of  the  court,  enumerat- 
ing the  objections  to  the  memorandum,  says,  no  person  can  ascertain 

1  The  dissenting  opinion  of  Daniel,  J.,  is  omitted.  His  dissent  was  on  the  ground 
that  the  court  had  no  jurisdiction  of  the  case.  On  the  question  in  regard  to  the  Statute 
of  Frauds,  he  expressed  assent  to  the  opinion  of  Nelsox,  J. 


618  SALMON   FALLS   MANUF.    CO.    V.    GODDARD.       [CHAP.   IV. 

from  this  memorandum  which  of  the  parties  was  seller  and  which 
buyer;  and  I  think  it  would  be  difficult  to  show  that  the  memorandum 
now  in  question  is  an\'  more  intelligible  in  reference  to  this  fact. 

Indeed,  I  do  not  understand  it  is  supposed  that,  in  the  absence  of 
all  extraneous  evidence,  it  could  be  determined  by  the  court,  as  mat- 
ter of  law,  upon  an  Inspection  of  the  paper  alone,  that  Goddard  was 
the  purchaser  of  these  goods.  The  real  inquiry  is,  whether  extrane- 
ous evidence  of  this  fact  is  admissible. 

Now,  it  is  true,  the  statute  requires  only  some  note,  or  memoran- 
dum, in  writing,  of  the  bargain  ;  but  I  consider  it  settled  that  this 
writing  must  show  who  is  vendor  and  who  is  purchaser.  In  Cham- 
pion V.  Plumer,  IB.  &  P.  New  Rep.  252,  the  memorandum  contained 
the  name  of  the  vendor,  a  description  of  the  goods,  and  their  price, 
and  was  signed  by  the  vendee;  3'et,  it  was  held  that  the  vendee 
could  not  maintain  an  action  thereon,  because  it  did  not  appear, 
from  the  writing,  that  he  was  vendee,  though  it  was  clearly  proved 
by  parol. 

In  Sherburn  et  al.  v.  Shaw,  1  N.  H.  Rep.  157,  the  plaintiffs  caused 
certain  real  estate  to  be  sold  at  auction,  and  the  defendant,  being  the 
highest  bidder,  signed  a  memorandum  agreeing  to  take  the  propert}' ; 
this  memorandum  was  written  on  a  paper,  headed :  "  Articles  of  sale 
of  the  estate  of  Jonathan  Warner,  deceased,"  containing  the  terms 
of  the  sale ;  and  this  paper  was  also  signed  b}'  the  auctioneer.  Yet, 
the  court  through  Mr.  Justice  Woodbur}',  who  delivered  the  opinion, 
held  that,  as  the  paper  failed  to  show  that  the  plaintiffs  were  the  ven- 
dors, it  was  radicall}'  defective.  Here,  also,  there  was  no  doubt  that 
the  plaintiffs  were  the  vendors,  but  extraneous  evidence  to  supply 
this  fact  was  considered  inadmissible. 

It  seems  to  me  that  the  fact  that  the  defendant  was  the  purchaser 
is,  to  sa3'  the  least,  as  necessary  to  be  stated  in  the  writing  as  any  other 
fact,  and  that  to  allov/  it  to  be  proved  by  parol,  is  to  violate  the  in- 
tent of  the  statute,  and  encounter  the  very  mischiefs  which  it  was  en- 
acted to  prevent.  Chancellor  Kent,  2  Com.  511,  sa3's  :  "  The  contract 
must,  however,  be  stated  with  reasonable  certaint}',  so  that  it  can  be 
understood  from  the  writing  itself,  without  having  recourse  to  parol 
proof."  And  this  position  rests  upon  a  current  of  authorities,  both 
in  England  and  America,  which  it  is  presumed  are  not  intended  to 
be  disturbed.  But  how  can  the  contract  be  understood  from  the 
writing  itself,  when  that  fails  to  state  which  party  is  vendor  and 
which  purchaser? 

1  am  aware  that  a  latent  ambiguity  in  a  contract  may  be  removed 
by  extraneous  evidence,  according  to  the  rules  of  the  common  law  ; 
and  that  such  evidence  is  also  admissible  to  show  what,  in  point  of 
fact,  was  the  subject-matter  called  for  by  the  terms  of  a  contract. 
Bradlee  v.  Steam  P.  Co.,  13  Pet.  98.  So  when  an  act  has  been  done 
by  a  person,  and  it  is  doubtful  whether  he  acted  in  a  private  or  official 
capacity,  it  is  allowable  to  prove  by  parol  that  he  was  an  agent  and 


SECT.   II.]       SALMON   FAXJLS    MANUF.    CO.    V.    GODDARD.  619 

acted  as  such.  But  these  cases  fall  far  short  of  proving  that  when  a 
statute  requires  a  contract  to  be  in  writing,  you  ma}-  prove  by  parol  the 
fact  that  the  defendant  was  purchaser,  the  writing  being  silent  as  to 
that  fact;  or  that  a  writing,  which  does  not  state  who  is  vendor  and 
who  purchaser,  does  contain  in  itself  the  essentials  of  a  contract  of 
sale. 

It  is  one  thing  to  construe  what  is  written ;  it  is  a  very  different 
thing  to  suppl}'  a  substantive  fact  not  stated  in  the  writing.  It  is 
one  thing  to  determine  the  meaning  and  effect  of  a  complete  and 
valid  written  contract,  and  it  is  another  thing  to  take  a  writing,  which 
on  its  face  imports  no  contract,  and  make  it  import  one  by  parol  evi- 
dence. It  is  one  thing  to  show  that  a  part}',  who  appears  by  a  writing 
to  have  made  a  contract,  made  it  as  an  agent,  and  quite  a  different 
thing  to  prove  b}'  parol  that  he  made  a  purchase  when  the  writing  is 
silent  as  to  that  fact.  The  dut}'  and  power  of  the  court  is  a  duty  and 
power  to  give  a  construction  to  what  is  written,  and  not  in  any  case  to 
permit  it  to  be  added  to  by  parol.  Least  of  all  when  a  statute  has 
required  the  essential  requisites  of  a  contract  of  sale  to  be  in  writing, 
is  it  admissible,  in  m}'  judgment,  to  allow  the  fact,  that  the  defendant 
made  a  purchase,  to  be  proved  by  parol.  If  this  fact,  which  lies  at  the 
basis  of  the  action  and  to  which  every  other  is  but  incidental,  can  be 
proved  by  evidence  out  of  the  writing  signed  by  the  defendant,  the 
statute  seems  to  me  to  be  disregarded. 

It  has  been  argued  that  the  bill  of  parcels,  sent  to  Goddard  by 
Mason  and  Lawrence,  and  received  by  him,  ma}'  be  resorted  to  for 
the  purpose  of  showing  he  was  the  purchaser.  But  it  is  certainly 
the  law  of  Massachusetts,  where  this  contract  was  made,  and  the  case 
tried,  as  I  believe  it  is  of  most  other  States,  and  of  England,  that  un- 
less the  memorandum  which  is  signed  contains  a  reference  to  some 
other  paper,  no  paper,  not  signed  by  the  party  to  be  charged,  can 
be  connected  with  the  memorandum,  or  used  to  supply  any  defect 
therein.  This  was  held  in  Morton  et  al.  v.  Dean,  13  Met.  385,  a  case 
to  wliich  I  shall  have  occasion  more  fully  to  refer  hereafter.  And  in 
conformity  therewith,  Chancellor  Kent  lays  down  the  rule,  in  2  Com. 
511,  and  refers  to  many  authorities  in  support  of  it.  I  am  not  aware 
that  any  court  has  held  otherwise. 

That  this  bill  of  parcels  was  of  itself  a  sufficient  memorandum 
under  the  statute,  or  that  it  was  a  paper  signed  by  the  defendant,  or 
by  any  person  by  him  thereunto  lawfully  authorized,  I  do  not  under- 
stand to  be  held  by  the  majority  of  the  court. 

Now  the  memorandum  of  the  19th  September  is  either  sufficient  ot 
insufficient,  under  the  statute.  If  the  former,  there  is  no  occasion  to 
resort  to  the  bill  of  parcels  to  show  who  was  vendor  and  who  pur- 
chaser ;  if  the  latter,  it  cannot,  consistently  with  the  statute,  be  made 
good  by  another  paper  not  signed,  and  connected  with  it  only  by  parol. 
To  charge  a  party  upon  an  insufficient  meinoraniiuin,  added  to  by  an- 
other independent  paper,  not  signed,  would  be  to  charge  him  when 


620  SALMON   FALLS   MANUF.    CO.   V.   GODDARD.      [CHAP.   IV. 

there  was  no  sufficient  memorandum  signed  by  him,  and  therefore  in 
direct  conflict  with  the  statute.  It  does  not  seem  to  me  to  be  an 
answer,  to  say  that  the  bill  of  parcels  was  made  out  pursuant  to  the 
memorandum.  If  the  signed  memorandum  itself  does  not  contain  the 
essentials  of  a  contract  of  sale,  and  makes  no  reference  to  an}'  other 
paper,  in  no  legal  sense  is  any  other  paper  pursuant  to  it — nor  can 
an}'  other  paper  be  connected  with  it,  save  b}'  parol  evidence,  which  the 
statute  forbids.  In  point  of  fact,  it  would  be  difficult  to  imagine  any 
two  independent  papers  more  nearl}'  connected  than  a  memorandum 
made  and  signed  b}*  an  auctioneer,  and  the  written  conditions  read  by 
him  at  the  sale.  Yet  it  is  settled,  that  the  latter  cannot  l)e  referred  to, 
unless  expressl}'  called  for  by  the  very  terms  of  the  signed  memoran- 
dum. Upon  what  principle  does  a  bill  of  parcels  stand  upon  any 
better  ground? 

The  distinction,  heretofore,  has  been  between  papers  called  for  by 
the  memorandum  b}'  express  reference,  and  those  not  thus  called  for; 
this  decision,  for  the  first  time,  I  believe,  disregards  that  distinction, 
and  allows  an  unsigned  paper,  not  referred  to,  to  be  used  in  evidence 
to  charge  the  purchaser. 

In  my  judgment,  this  memorandum  was  defective  in  not  showing 
who  was  vendor  and  who  purchaser,  and  oral  evidence  to  supply 
this  defect  was  not  admissible. 

But  if  this  difficulty  could  be  overcome,  or  if  it  had  appeared  on 
the  face  of  the  paper  that  Goddard  was  the  purchaser,  still,  in  my 
judgment,  there  is  no  sufificient  memorandum.  I  take  it  to  be  clearly 
settled,  that  if  the  court  cannot  ascertain  from  the  paper  itself,  or 
from  some  other  paper  therein  referred  to,  the  essential  terms  of  the 
sale,  the  writing  does  not  take  the  case  out  of  the  statute.  This  has 
been  so  often  decided  that  it  is  sufficient  to  refer  to  2  Kent's  Com. 
611,  where  many  of  the  cases  are  collected. 

The  rule  stated  b}'  the  chancellor  as  a  just  deduction  from  the  au- 
thorities is:  "Unless  the  essential  terras  of  the  sale  can  be  ascer- 
tained from  the  writing  itself,  or  by  a  reference  contained  in  it  to 
something  else,  the  writing  is  not  a  compliance  with  the  statute ; 
and  if  the  agreement  be  thus  defective,  it  cannot  be  supplied  by 
parol  proof,  for  that  would  at  once  introduce  all  the  mischiefs  which 
the  statute  of  frauds  and  perjuries  was  intended  to  prevent." 

The  statute,  then,  requires  the  essential  terms  of  the  sale  to  be  in 
writing  ;  the  credit  to  be  allowed  to  the  purchaser  is  one  of  the  terms 
of  the  sale. 

And  if  the  memorandum  shows  that  a  credit  was  to  be  given,  but 
does  not  fix  its  termination,  it  is  fatalh'  defective,  for  the  court  cannot 
ascertain,  from  the  paper,  when  a  right  of  action  accrues  to  the  ven- 
dee, and  the  contract  shown  b}'  the  paper  is  not  capable  of  being  de- 
scribed in  a  declaration.  The  rights  of  the  parties,  in  an  essential 
particular,  are  left  undetermined  by  the  paper.  This  paper  shows 
there   was  to  be  a  credit  of  six  months,  and  contains  this  clause  — 


SECT.   II.]      SALMON-  FALLS   ALAJTUF.    CO.    V.   GODDARD.  621 

"  Cr.  to  commence  when  ship  sails:  not  after  December  1."  Ac- 
cording to  this  paper,  when  is  this  credit  to  commence?  The  answer 
is,  when  ship  sails,  if  before  December  1.  What  ship?  The  paper 
is  silent. 

This  is  an  action  against  Goddard  for  not  delivering  his  note  on 
twelve  months'  credit,  and  it  is  an  indispensable  inquir\-,  on  what 
da}',  according  to  the  contract,  the  note  should  bear  date.  The  plain- 
tiffs must  aver,  in  their  declaration,  what  note  Goddard  was  bound 
to  deliver,  and  the  memorandum  must  enable  the  court  to  saj'  that 
the  description  of  the  notes  in  the  declaration  is  correct.  They  at- 
tempt this  by  averring,  in  the  declaration,  that  the  contract  was  for  a 
note  payable  in  twelve  months  from  the  sailing  of  a  ship  called  "The 
Crusader,"  and  that  this  ship  sailed  on  the  sixth  dav  of  November. 
But  the  writing  does  not  refer  to  the  "  Crusader "  ;  and  if  oral 
evidence  were  admissible  to  prove  that  the  parties  referred  to  "The 
Crusader,"  this  essential  term  of  their  contract  is  derived  from  parol 
proof,  contrarj-  to  the  requirement  of  the  statute.  It  was  upon  this 
ground  the  case  of  Morton  et  al.  v.  Dean,  and  man}'  other  similar  cases, 
have  been  decided.  In  that  case,  there  was  a  memorandum  signed  by 
the  auctioneer,  as  the  agent  of  both  parties,  containing  their  names,  as 
vendor  and  vendee,  the  price  to  be  paid,  and  a  sufficient  description  of 
the  propert}'.  But  it  appeared  that  there  were  written  or  printed  con- 
ditions read  at  the  sale,  but  not  referred  to  in  the  memorandum, 
containing  the  terms  of  credit,  &c.,  and  therefore  that  the  memorandum 
did  not  fix  all  the  essential  parts  of  the  bargain,  and  it  was  held 
insufficient. 

But,  further ;  even  if  oral  evidence  were  admissible  to  show  that 
the  parties  had  in  view  some  particular  vessel,  and  so  to  explain  or 
render  certain  the  memorandum,  no  such  evidence  was  offered,  and 
no  request  to  leave  that  question  of  fact  to  the  jury  was  made. 
Mason,  who  made  the  contract  with  Goddard,  was  a  witness,  but  he 
does  not  pretend  the  parties  had  any  particular  vessel  in  view,  still  less 
that  the  \'  agreed  on  "  The  Crusader"  as  the  vessel,  the  sailing  of  wliich 
was  to  be  the  commencement  of  the  credit.  I  cannot  perceive,  there- 
fore, how  either  of  the  counts  in  this  declaration  is  supported  by  the 
evidence,  or  how  a  different  verdict  could  have  lawfull}'  been  rendered. 

The  count  for  goods  sold  and  delivered,  was  clearly  not  maintained, 
because,  when  the  action  was  brought,  the  credit  had  not  expired, 
even  if  it  began  on  the  19th  of  September.  One  of  the  special  counts 
avers,  that  the  notes  were  to  be  due  twelve  months  from  the  30th  of 
September ;  but  this  is  inconsistent  with  the  written  memorandum, 
and  there  is  no  evidence  to  support  it.  Tlie  other  special  counts  all 
declare  for  a  note  due  twelve  months  after  the  sailing  of  "  The  Crusa- 
der," but,  as  alread}-  stated,  there  is  no  evidence  wliatever  to  support 
this  allegation,  and  a  verdict  of  the  }nv\,  affirming  such  a  contract,  must 
have  been  set  aside. 

It  ma}'  be  added,  also,  that  no  one  of  the  prayers  for  instructions, 


622  WRIGHT   V.    DANNAH.  [CHAP.   IV. 

contained  in  the  bill  of  exceptions,  makes  the  fact  that  the  parties  had 
reference  to  "The  Crusader,"  an}'  element  of  the  contract,  but  that 
each  of  them  asks  for  an  instruction  upon  the  assumption  that  this 
necessar}'  term  of  the  contract  had  not  been  in  any  way  supplied. 

I  consider  the  language  of  Chief  Justice  Marshall,  in  Grant  v.  Na}'- 
lor,  4  Craijch,  234,  applicable  to  this  case.  That  great  judge  says : 
"  Already  have  so  many  cases  been  taken  out  of  the  statute  of  frauds, 
which  seem  to  be  within  its  letter,  that  it  may  well  be  doubted 
whether  the  exceptions  do  not  let  in  many  of  the  mischiefs  against 
which  the  rule  was  intended  to  guard.  The  best  judges  in  England 
have  been  of  opinion  that  this  relaxing  construction  of  the  statute 
ought  not  to  be  extended  further  than  it  has  already  been  carried,  and 
this  court  entirelj'  concurs  in  that  opinion." 

I  am  authorized  to  state  that  Mr.  Justice  Catron  concurs  in  this 
opinion.^ 


WRIGHT  V.    DANNAH. 
At  Guildhall,  Coram  Lord  Ellenborough,  July  4,  1809. 

[Reported  in  2  Campbell,  203.] 

Goods  bargained  and  sold.  —  Plea,  the  general  issue. 

The  action  was  brought  for  the  value  of  four  sacks  of  clover  seed. 
The  parties  having  met  on  the  corn  exchange  in  London,  entered 
into  a  negociation  for  the  sale  of  this  seed  ;  and  after  they  had  agreed 
on  the  price,  the  plaintiff  wrote  the  following  memorandum  of  the 
contract. 

•'  Robert  Dannah,  Windley  near  Derby. 
4  Sacks  clover  seed,  at  6/.  18s. 
Per  Fly  Boat." 

After  the  plaintiff  had  written  this  memorandum,  the  defendant, 
who  overlooked  him  while  he  wrote  it,  desired  him  to  alter  the  figures 
18  to  16,  —  61.  16s.  being  the  price  agreed  on.  This  the  plaintiff 
accordingly  did.  The}'  then  parted,  the  memorandum  being  left  with 
the  defendant. 

Park  objected  that  this  was  not  a  sufficient  memorandum  within  the 
statute  of  frauds,  not  being  signed  by  the  party  to  be  charged  b}'  it, 
or  his  authorized  agent. 

Garroio  and  Puller,  contra,  submitted  that  the  defendant  had  made 
the  plaintiff  his  agent  for  the  purpose  of  signing  the  memorandum, 

1  In  Grafton  r.  Cummirigs,  99  U.  S.  100,  111,  Mr.  Justice  Miller,  in  delivering  the 
opinion  of  the  court,  said  of  Salmon  Falls  Maniifatrturing  Co.  v.  Goddard  :  "  It  maybe 
doubted  whether  the  opiuion  of  the  majority  in  all  it  says  in  reference  to  the  nse  of 
parol  proof  in  aid  of  even  mercantile  sales  of  goods  by  brokers  is  sound  law."  The 
decision  is  also  expressly  disregarded  in  Meutz  v.  Newwitter,  122  N.  Y.  491,  497. 


SECT,  n,]        JONES  BEOTHERS  V.    JOYNER.  623 

by  overlooking  and  approving  of  what  he  had  written  ;  and  they  put 
the  case  of  a  man  incapable  from  disease  or  ignorance  of  writing  for 
himself. 

Lord  Ellenborough  said,  the  agent  must  be  some  third  person, 
and  could  not  be  the  other  contracting  party. 

Plaintiff  nonsuited. 

Garrow  and  Puller,  for  the  plaintiff. 

Park,  for  the  defendant. 


JONES   BROTHERS   v.   JOYNER. 
In  the  Queen's  Bench  Division,  May  31,  1900. 

[Reported  in  82  Law  Times  Reports,  768.] 


'■5^^K^ 


This  was  an  appeal  from  his  Honor  Judge  Sir  Richard  Harington, 
sitting  at  the  Worcester  County  Court. 

The  plaintiffs  were  hop  growers  and  the  defendant  was  a  publican, 
and  the  action  was  brought  to  recover  price  of  two  pockets  of  hops, 
and  at  the  trial  an  alternative  claim  was  added  for  damages  for  the 
refusal  of  the  defendant  to  accept  the  hops. 

On  the  22nd  Api'il,  1899,  the  defendant  gave  the  plaintiff  the  order 
and  signed  the  following  memorandum : 

April  22.  —  Mr.  J.  P.  Joyner,  Worcester.  —  2  Pos.  of  Hops  1898,  at  11  5s. 
per  cwt.,  awaiting  order.     Cash  on  delivery.  —  J.  P.  Joyner. 

The  above  memorandum  was  made  by  the  plaintiffs  in  a  paper 
memorandum  or  note-book  in  which  orders  were  generally  put,  and  it 
was  signed  by  the  defendant. 

This  paper  book  was  slipped  into  a  leather  cover,  upon  which  the 
name  "  James  Jones "  was  stamped.  When  the  paper  memorandum 
book  was  full,  it  could  be  withdrawn  and  a  fresh  one  inserted  in  the 
same  leather  cover. 

It  was  contended  b}'  the  defendant  that  there  was  no  sufficient  mem- 
orandum to  satisf}-  the  Sale  of  Goods  Act  1893,  sec.  4,  as  the  plaintiffs' 
name  did  not  appear  in  the  memorandum  signed  b}-  the  defendant. 

It  was  contended  b}'  the  plaintiffs  that  the  name  being  on  the  cover 
of  the  case  in  which  the  memorandum  book  was  at  the  time  the  order 
was  taken  was  sufficient  to  satisfy  the  statute,  and  the  book  and  case 
were  sufficienth'  connected  to  make  the  name  on  the  case  part  of  the 
memorandum,  on  the  authorit}'  of  Sari  v.  Bourdillon,  1  C.  B.  N.  s. 
188,  2  Jur.  N.  s.  1208. 

The  learned  judge  distinguished  that  case  on  the  ground  that  there 
the  name  of  the  plaintiff  was  on  the  fly-leaf  of  the  book  itself,  and 
he  gave  judgment  for  the  defendant,  holding  that  the  cover  and  the 
book  were  two  distinct  articles. 


624  JONES  BROTHERS  V.   JOYNER.        [CHAP.  IV. 

The  plaintiffs  appealed. 

Hon.  A.  LrjUelton,  Q.  C,  and  Harold  Hardy ^  for  the  plaintiffs. 

J.  B.  Matthews^  for  the  defendant. 

Darling,  J.  The  plaintiffs  in  this  ease,  Jones  Brothers,  are  sel- 
lers of  hops,  and  this  book  belonged  to  one  of  the  partners.  He  sold 
certain  hops  to  the  defendant,  and  made  the  note  in  his  book  which 
was  signed  by  the  defendant.  It  is  now  objected  that  there  was  not 
sufficient  memorandum  to  satisfy  the  Statute  of  Frauds,  re-enacted  by 
sec.  4  of  the  Sale  of  Goods  Act  1893,  where  the  names  of  the  buyer 
and  seller  must  both  appear.  The  learned  county  court  judge  has 
held  that  there  was  not  a  sufficient  memorandum  to  satisfy  the  statute, 
and  he  made  reference  in  his  judgment  to  the  two  cases  of  Sari  v. 
Bourdillon,  1  C.  B.  n.  s.  188,  2  Jur.  n.  s.  1208  and  Vandenberg  v. 
Spooner,  14. L.  T.  Rep.  701,  L.  Rep.  1  Ex.  316.  That  latter  case  has 
little  to  do  with  the  matter,  for  the  name  Vanderberg  had  only  to  do 
with  identifying  the  goods.  In  Sari  v.  Bourdillon  the  note  made  had 
been  signed  by  the  buyer,  and  the  name  of  the  seller  was  on  the  fly-leaf  of 
the  book  itself.  The  learned  judge  in  his  judgment  says  :  "In  Sari  v. 
Bourdillon  evidence  that  the  entry  was  signed  by  the  defendant  in 
plaintiffs  order  book  containing  the  name  of  the  plaintiff  on  the  fly- 
leaf was  held  sufficient.  But  there  the  book  was  an  order  book,  and 
appears  to  have  been  an  entire  document  as  much  as  a  deed  engrossed 
on  several  skins  of  parchment  attached  together  would  be.  Here  the 
cover  and  the  book  were  too  distinct  articles  and  the  name  was  evi- 
dently printed  on  the  case  as  an  indictment  of  ownership  of  it  and  its 
contents,  whatever  they  might  happen  to  be,  and  not  for  the  purpose 
of  indicating  concurrence  in  contracts."  He  seems  to  think  that  if 
this  had  all  been  an  order  book  it  might  have  been  sufficient ;  but 
although  this  book  was  a  pocket-book,  it  was  one  in  whicii  there  were 
orders,  and  in  which  orders  were  written.  In  Champion  v.  Plummer, 
1  Bos.  &  P.  252,  it  was  held  that  a  note  or  memorandum  in  writing, 
signed  by  the  seller  onl}'  and  without  an3'thing  on  the  memorandum 
to  show  who  the  buyer  was,  was  not  a  sufficient  memorandum  to 
satisfj'  the  statute.  In  the  course  of  the  report  it  says  that  it  was 
proved  that  a  note  was  made  in  a  common  memorandum  book  and 
signed  by  the  defendant.  No  point  is  made  in  the  judgment  that  this 
was  merely  a  common  memorandum  book,  and  I  do  not  mention  this 
point  for  the  first  time,  for  in  Allen  v.  Bennet,  3  Taunt.  169,  Sir 
James  Mansfield,  C.  J.,  says:  "To  be  sui-e  this  case  at  first  sight 
comes  near  to  the  case  of  Champion  v.  Plummer,  and  the  objection 
there  certainly  was  that  the  memorandum  was  not  signed  by  the  pur- 
chaser ;  that  was  a  note  made  in  what  the  report  calls  a  common 
memorandum  book ;  tliis  book  certainly  was  not  like  what  I  at  first 
apprehended  it  to  be,  until  it  was  produced  ;  for  I  at  first  thought  this 
had  been  an  order  book.  .  .  ."  However,  in  Champion  t'.  Plummer  the 
court  did  not  take  the  point  tliat  it  was  onl}'  a  common  memorandum 
book.     But  this  case  which  is  most  like  the  present  is  undoubtedlj' 


SECT,   n.]  EVANS   V.   HOARS.  625 

Sari  V.  Bourdillon,  supra,  where  the  book  is  described  as  an  order  book. 
The  other  point  that  tlie  learned  county  court  judge  took  was  that  the 
book  and  cover  were  two  distinct  articles.  But  when  the  memorandum 
was  made  they  were  only  one.  Take  the  case  of  a  letter  and  envelope. 
First  of  all  the  letter  is  written,  it  is  placed  in  an  envelope,  and 
the  name  of  the  other  person  appears  on  the  envelope.  In  such  a 
case  there  may  be  two  distinct  articles,  which  are  used  as  one.  Fur- 
ther I  think  it  makes  no  difference  that  the  words  ''  order  book"  do 
not  appear.  In  fact,  the  orders  were  placed  in  a  book  which  was 
used  for  that  purpese.     The  appeal  must  be   allowed. 

Bdcknill,  J.  From  a  common-sense  point  of  view  one  cannot  sa}' 
that  there  were  two  distinct  articles.  In  fact  there  was  only  one 
article.  I  come  to  the  same  conclusion  as  my  brother,  that  this  appeal 
must  be  allowed. 

Appeal  allowed. 


EVANS   V.    HOARE   and   Another. 
In  the  Queen's  Bench  Division,   March  14,   15,  1892. 

[Reported  in  [1892J  1  Queen's  Bench,  593.] 

Appeal  by  the  plaintiff  from  the  judgment  of  the  assistant  judge  of 
the  Maj'or's  Court, 

The  action  was  brought  to  recover  damages  for  wrongful  dismissal. 
In  1886  the  plaintiff  entered  into  the  service  of  the  defendants,  as 
ledger  clerk,  at  a  salary  of  80^.  a  year.  On  two  subsequent  occasions 
his  salary  was  raised  lOZ.,  bringing  it  up  to  100^.  a  3'ear.  On  Februar}'' 
19,  1890,  the  following  document  was  drawn  up  by  a  clerk  of  the 
defendants  named  Harding,  who  was  acting  with  the  defendants' 
authorit}',  and  presented  b}'  Harding  to  the  plaintiff  for  signature,  and 
signed  by  the  plaintiff. 

5,  Campbell  Terrace,  Cannhill  Road,  Lettonstonb,  E., 

Feb.  19,  1890. 
Messrs.  Hoare,  Marr  &  Co.,  26,  29,  Budge  Row,  London,  E.  C. 

Gentlemen,  —  In  consideration  of  advancingf  my  salary  to  the  sum  of  130/. 
per  annum,  I  hereby  a^ree  to  continue  ray  encjagement  in  your  office  for  three 
years,  from  and  commencing  January  1,  1890,  at  a  salary  at  the  rate  of  130/. 
per  annum  aforesaid,  payable  monthly  as  hitherto. 

Yours  obediently, 

George  E.  Evans. 

Afterwards  the  defendants  dismissed  the  plaintiff  from  their  service. 

At  the  trial  the  jury  found  a  verdict  for  the  plaintiff  for  34/.  13s.  Ad. 

damages;   but  the  assistant  judge,  being  of  opinion  that  the  document 

of  February  19,  1890,  was  an  agreement  that  was  not  to  be  performed 

within  the  space  of  one  year  from  the  making  thereof,  and  was  not 

vol.  I. — 40 


626  EVANS   V.   HOARE.  [CHAP,   IV. 

signed  by  the  defendants  or  an\'  other  person  b}'  them  lawfull}'  author- 
ized, and  that  therefore  the  plaintiff  was  prevented  from  recovering  by 
see.  4  of  tlie  Statute  of  Frauds,  29  Car.  II.  c.  3,  gave  judgment  for  the 
defendants. 

Mar.  14.  Crump,  Q.  C.  {Leslie  Prohyn,  with  him),  for  the  plaintiff, 
in  support  of  the  appeal. 

Witt,  Q.  C.  (  Tatlock,  with  him),  for  the  defendants. 

March  15.     The  following  judgments  were  delivered:  — 

Denman,  J.  This  was  an  action  for  wrongful  dismissal.  The  plain- 
tiff entered  the  defendants'  service  as  a  ledger  clerk  at  80Z.  a  3-ear ;  the 
salary  was  twice  raised  \0l.  a  year  until  it  reached  100^.  On  February 
19,  1890,  the  plaintiff  signed  an  agreement  as  follows  :  — 

5,  Caufbell  Terrace,  Cannhill  Road,  Leytonstone, 

Feb.  19,  1890. 

Messrs.  Hoare,  Marr  &  Co.,  26,  29,  Bcdge  Row,  London,  E.  C. 

Gentlemen,  —  In  consideration  of  your  advancing  my  salary  to  the  sum  of 
130/.  per  annum,  I  hereby  agree  to  continue  my  engagement  in  your  office  for 
three  years,  from  and  commencing  January  1,  IS'JU,  at  a  salary  at  the  rate  of 
130Z.  per  annum  aforesaid,  payable  monthly  as  hitherto. 

Yours  obediently, 

Gkorge  E.  Evans. 

If  this  agreement  was  within  sec.  4  of  the  Statute  of  Frauds,  the  judgment 
was  justified.  The  learned  judge  gave  judgment  for  the  defendants  on 
the  ground  that  the  document  was  not  signed  within  that  section. 
This  decision  would  be  right  unless  the  words  "Messrs.  Hoare,  Marr 
«&  Co.,"  at  the  commencement,  can,  under  the  circumstances,  be  held 
to  be  "  a  signature  by  a  person  authorized  thereunto  bj*  the  defend- 
ants." In  fact,  the  document  was  drawn  jip  by  one  Harding,  who 
was  authorized  b}'  the  defendants  to  draw  it  up  and  take  it,  in  its 
present  shape  in  all  other  respects,  for  the  plaintiff's  signature.  It 
appears  to  me  that  the  case  falls  within  the  principle  of  the  decisions 
cited  in  favor  of  the  plaintiff,  especially  Schneider  v.  Norris,  2  M.  & 
S.  286,  and  Jones  v.  Victoria  Graving  Dock  Co.,  2  Q.  B.  D.  314  ;  see 
also  the  case  of  Bleakley  v.  Smith  11  Sim.  150.  In  the  present  case 
it  is  impossible  to  doubt  that  the  word  "•your,"  twice  used  in  the 
written  document,  refers  to  the  defendants,  whose  name  and  address 
is  given  in  full  at  the  head  of  the  document.  Nor  can  I  doubt  that" 
both  Harding  and  the  defendants  intended  that  this  document,  when 
signed  by  Evans,  should  be  the  final  memorandum  of  tlie  contract 
binding  upon  the  defendants  as  well  as  the  plaintiff.  Mr.  Witt  con- 
tended that  tlie  cases  relied  upon  were  all  cases  whore  the  document 
was  sent  out  by  the  person  cliarged.  I  do  not  think  that  this  is 
necessar}',  if  by  the  expression  "  sent  out"  is  meant  more  than  sub- 
mitted for  signature  to  the  other  party.  If  the  party  sued  has  autlior- 
ized  an  agent  to  lay  before  the  party  suing  a  document  containing  his 
name  in  full  as  that  of  the  party  with  whom  the  contract  is  to  be 


SECT.   IL]  EVANS   V.   HOAKE.  627 

made,  so  as  to  announce  to  the  other  party  that  they  are  offering  him 
certain  terms  if  he  will  agree  to  them  in  writing,  and  he  thereupon 
signs,  I  think  that  there  is  a  sufficient  "agreement  or  memorandum 
thereof,  signed  by  a  party  authorized  thereunto  "  within  sec.  4  of  the 
Statute  of  Frauds.  That  appears  to  me  to  be  the  case  here.  I  there- 
fore think  that  the  plaintiff  is  entitled  to  judgment  for  the  amount  of 
the  verdict. 

Cave,  J.  I  am  of  the  same  opinion.  The  case  put  forward  on 
behalf  of  the  plaintiff  was  based  on  the  grounds  which  have  been 
stated  by  m}'  brother  Denman  ;  and  it  was  further  contended  that  the 
plaintiff  had  served,  and  must,  therefore,  be  entitled  to  recover  some- 
thing in  respect  of  such  service.  It  is  obvious,  however,  that  this 
latter  contention  is  not  well  founded ;  for  the  plaintiff  had  not  com- 
pleted an}'  one  month  of  service  under  the  contract.  The  real  point  to 
be  decided  is,  whether  the  document  in  question  is  a  memorandum  or 
note  in  writing  of  an  agreement  signed  b}-  the  party  to  be  charged,  or 
by  some  other  person  lawfull}'  authorized,  within  the  meaning  of  sec.  4 
of  the  Statute  of  Frauds,  29  Car.  II.  c.  3.  The  Statute  of  Frauds  was 
passed  at  a  period  when  the  legislature  was  somewhat  inclined  to  provide 
that  cases  should  be  decided  according  to  fixed  rules,  rather  than  to 
leave  it  to  the  jury  to  consider  the  effect  of  the  evidence  in  each  case. 
This,  no  doubt,  arose  to  a  certain  extent  from  the  fact  that  in  those 
days  the  plaintiff  and  the  defendant  were  not  competent  witnesses. 
Several  cases  were  referred  to  in  the  course  of  the  argument,  which  it 
was  contended  could  not  be  distinguished  from  the  present  case ;  but 
it  is  difficult  to  ascertain  whether  the  circumstances  of  the  different 
cases  are  the  same,  or  rather  whether  the  circumstances  in  which  the 
different  cases  are  similar  or  dissimilar  are  material  or  immaterial  to 
the  point  under  consideration.  No  doubt,  in  attempting  to  frame  a 
principle,  one  is  obliged  to  depart  somewhat  from  the  strict  lines  of 
the  statute.  I  am  of  opinion  that  the  principle  to  be  derived  from  the 
decisions  is  this.  In  the  first  place,  there  must  be  a  memorandum  of 
a  contract,  not  merely  a  memorandum  of  a  proposal ;  and,  secondly, 
there  must  be  in  the  memorandum,  somewhere  or  other,  the  name  of 
the  party  to  be  charged,  signed  by  him  or  by  his  authorized  agent. 
Whether  the  name  occurs  in  the  body  of  the  memorandum,  or  at  the 
beginning,  or  at  the  end,  if  it  is  intended  for  a  signature  there  is  a 
memorandum  of  the  agreement  within  the  meaning  of  the  statute.  In 
the  present  case  it  is  true  that  the  name  of  the  defendants  occurs  in 
the  agreement ;  but  it  is  suggested  on  behalf  of  the  defendants  that  it 
was  only  put  in  to  show  who  the  persons  were  to  whom  the  letter  was 
addressed.  The  answer  is  that  there  is  the  name,  and  it  was  inserted 
by  the  defendants'  agent  in  a  contract  which  was  undoubtedly  intended 
by  the  defendants  to  be  binding  on  the  plaintiff;  and,  therefore,  the 
fact  that  it  is  onlj'  in  the  form  of  an  address  is  immaterial.  A  case 
was  referred  to  in  the  argument,  Schneider  v.  Norris,  2  M.  &  S.  286, 
in  which  a  printed  bill-head  was  held  to  amount  to  a  signature  within 


1 


628  HUCKLESBY  V.   HOOK.  [CHAP.   IV. 

the  meaning  of  the  statute.  That  is  a  stronger  case  than  the  present. 
The  printed  heading  there  was  not  put  into  the  document  for  the 
purpose  of  constituting  a  memorandum  of  the  contract ;  but  it  was 
so  used  with  the  assent  of  the  part}'  sought  to  be  charged,  and  it  there- 
fore was  held  to  have  the  effect  of  a  signature.  This  shows  that  it  is 
unimportant  how  the  name  came  to  be  inserted  in  the  document.  I 
cannot  discover  any  other  principle  than  that  which  I  have  stated,  and 
I  am  of  opinion  that  the  present  case  comes  within  that  principle ; 
and  therefore  the  plaintiff  is  entitled  to  judgment  for  the  amount  of 
the  damages  found  by  the  jury. 

Appeal  allowed. 
Leave  to  appeal  re/used.^ 


HUCKLESBY  v.   HOOK. 
V  In  the  Chancery  Division,  February  14,  1900. 

[^Reported  in  82  Law  Times  Reports,  117.] 

This  action  turned  upon  the  sufficiency  of  a  memorandum  of  a  con- 
tract for  the  sale  of  land,  not  signed  by  the  defendant,  but  bearing  his 
printed  name  and  address,  to  satisfy'  the  Statute  of  Frauds. 

Mr.  F.  J.  Hucklesby,  a  land  agent  residing  at  Stamford  Hill,  was 
informed  that  Mr.  Hook,  an  hotel-keeper  at  Clacton-on-Sea,  had  some 
land  for  sale  in  that  town,  and  he  accordingly  went  down  to  negotiate 
for  the  purchase. 

The  evidence  showed  that  Mr.  Hucklesby  called  upon  Mr.  Hook  at 
the  hotel,  and  that  after  some  little  conversation  they  adjourned  to  the 
coffee-room,  where  Mr.  Hook  took  from  a  rack  a  sheet  of  note-paper, 
bearing  the  printed  words  : 

1  The  signature  required  by  the  statute  need  not  be  at  the  end  of  the  memorandum. 
Lemayne  r.  Stanley,  3  Lev.  1  ;  Knight  v.  Crockford,  1  Esp.  188  ;  Holmes  v.  Mackrell, 
3  C.  B.  N.  s.  789  ;  Barry  v.  Coombe,  1  Pet.  650;  Nichols  v.  Johnson,  10  Conn.  192; 
McConnell  v.  Brillhart,  17  111  354;  Drury  v.  Young,  58  Md.  546;  Penniman  v. 
Hartshorn,  13  Mass.  87  ;  Hawkins  v.  Chace,  19  Pick.  502;  Traylor  c.  CabaunJ,  8  Mo. 
App.  131;  Merritt  v.  Clasou,  12  Johns.  102;  Tingley  v.  Bellinghara  Co.,  5  Wash. 
644. 

In  John  Griffiths  Cycle  Corp.  v.  Humber  &  Co.,  [1899^1  2  Q.  B.  414,  418,  A.  L. 
Smith,  L.  J.,  said  :  "  It  is  also  undoubted  law  tliat  a  signature  to  a  document  which 
contains  the  terms  of  a  contract  is  available  for  the  purpose  of  satisfying  sec.  4  of  the 
statute,  thongh  put  alio  intuitu  and  not  in  order  to  attest  or  verify  the  contract. 
Jones  V.  Victoria  Dock  Co.,  2  Q.  B.  D.  314." 

But  under  the  New  York  statute  as  amended  requiring  the  memorandum  to  be 
"  sub.scribed,"  it  is  held  that  the  signature  must  be  at  the  end.  Davis  v.  Shields, 
26  Wend.  341  ;  James  v.  Patten,  6  N.  Y.  9  ;  Doughty  v.  Manhattan  Brass  Co., 
101  N.  Y.  644.     See  also  Coon  v.  Rigden,  4  Col.  275. 


SECT.    II.]  HUCKLESBY   V.   HOOK.  629 

"The  Warwick  Castle  Hotel,  Pier-avenue,  Clacton-on-Sea;  sole  proprietor, 
Wm.  Thos.  Hook." 

and  handed  it  to  Mr.  Hucklesb}',  who  wrote  as  follows : 

285,  St.  Ann's-road,  Stamford  Hill,  N.,  April  3,  1899.  —  T.  Hook,  Esq. — 
Dear  Sir,  —  I  hereby  agree  to  give  you  the  sum  of  590L  for  the  piece  of  land  at 
the  corner  of  Marine-parade  and  Town-road.  Please  instruct  your  solicitor  to 
forward  the  contract  to  me.     (Signed)  F.  J.  Hucklesby. 

Mr.  Hucklesby  then  handed  this  document  to  Mr.  Hook,  and  on  the 
following  da}'  sent  him  a  cheque  for  59^.  as  deposit. 

Mr.  Hook  was  not  in  fact  the  owner  of  the  land  ;  the  actual  owner 
refused  the  offer,  and  the  59/.  was  returned  to  Mr.  Hucklesb}-,  who 
thereupon  brought  this  action  against  Mr.  Hook,  claiming  specific  per- 
formance of  the  contract,  and,  alternatively,  damages  for  misrepresenta- 
tion on  the  ground  that  the  defendant  had  alleged  himself  to  be  the 
owner.     The  defendant  relied  on  the  Statute  of  Frauds. 

It  was  alleged,  but  not  proved,  that  the  letter  was  written  at  the 
dictation  of  the  defendant. 

E.  Ford,  for  the  plaintiff. 

Astbiiry,  Q.  C,  and  J.  H.  Gray,  for  the  defendant,  were  not  called 
upon. 

Buckley,  J.  It  seems  to  me  that  the  plaintiff's  case  fails  altogether. 
(His  Lordship  read  the  memorandum  and  referred  to  the  evidence,  upon 
which  he  found  that  the  defendant  did  not  dictate  the  document,  and 
continued  :)  Now,  the  first  ground  upon  which  it  appears  to  me  that  the 
document  is  not  a  memorandum  within  the  statute  is  this :  I  think  the 
printed  words  at  the  head  of  the  letter  form  no  part  of  the  letter  at  all. 
The  object  of  the  address  at  the  head  of  the  letter,  I  apprehend,  is 
this :  it  is  an  intimation  given  by  the  writer  of  the  letter  that  the  ad- 
dress at  the  top  is  the  address  to  which  the  person  can  make  a  reply. 
It  is  no  part  of  the  document,  but  it  forms  his  address.  When  the 
plaintiff  wrote  "285,  St.  Ann's-road,  Stamford  Hill,  N.,"  he,  in  my 
opinion,  did  the  same  thing  as  if  he  had  struck  his  pen  through  the 
preceding  words,  "  The  Warwick  Castle  Hotel,  Pier-avenue,  Clacton-on- 
Sea;  sole  proprietor,  Wm.  TIios,  Hook,"  and  he  meant,  that  is  not  the 
address  from  which  I  sent  this  letter  —  the  address  from  which  I  send 
it  is  285  St.  Ann's-road,  Stamford  Hill.  The  name  of  Hook  occurs  later 
in  the  document  in  the  form  "T.  Hook,  Esq.,"  as  the  name  of  the  per- 
son to  whom  it  is  sent,  and  the  words  might  be  material  there.  But 
here  I  pause  to  consider  three  cases  which  have  been  referred  to  as  de- 
termining the  law  upon  this  point.  Before  going  to  the  cases  them- 
selves, I  will  state  what  I  conceive  to  be  the  principle  that  they  involve. 
The  exact  words  in  the  statute  are:  "Unless  the  agreement  upon 
which  such  action  shall  be  brought  or  some  memorandum  or  note 
thereof  shall  be  in  writing  and  signed  by  the  part}'  to  l)e  cliarged  there- 
with or  some  other  person  thereunto  by  him  lawfully  authorized." 
These  cases,  I  think,  proceed  upon  the  principle  that  signing  for  the 


630  HUCKLESBY   V.    HOOK.  [CHAP.   IV. 

purposes  of  the  statute  does  not  necessarily  mean  writing  j-our  name, 
but  means  ratifying  by  writing  in  some  form  or  other  tlie  document 
wliicli  contains  tlie  contract.  That  is  tlie  principle  which  lies,  I  thinlv, 
at  the  root  of  Schneider  v.  Norris,  a  case  in  2  M.  &  S.  at  p.  286,  and 
of  Evans  v.  Hoare,  66  L.  T.  Rep.  345,  (1892)  1  Q.  B.  593.  In 
Schneider  v.  Norris  what  happened  was  this  :  tlie  document  contained 
in  print  the  defendant's  name  ;  the  defendant  wrote  in  it  the  plaintiff's 
name  —  that  is  to  say,  he  wrote  some  part  of  the  document  which  did 
not  contain  the  defendant's  name.  Now,  what  Lord  Ellen  borough 
sa3-8  is  this:  "If,  indeed,  this  case  had  rested  merely  on  the  printed 
name  unrecognized  bj-  and  not  brought  home  to  the  part}-  as  having 
been  printed  by  him  or  b}'  his  authority,  so  that  the  printed  name  had 
been  unappropriated  to  the  particular  contract,  it  might  have  afforded 
some  doubt  whether  it  might  not  be  intrenching  upon  the  statute  to 
have  admitted  it.  But  here  there  is  a  signing  by  the  party  to  be 
charged  by  words  recognizing  printed  name  as  much  as  if  he  had 
subscribed  his  mark  to  it."  I  understand  that  to  mean,  that  in 
writing  the  plaintiff's  name  upon  the  document  which  contained  the 
defendant's  name,  the  defendant  had  written  recognizing  the  document 
which  contained  his  name,  although  he  had  not  written  his  own  name, 
but  had  identified  by  writing  the  document  which  contained  the  con- 
tract. Dampier,  J.,  puts  it  in  this  form  :  "  The  defendant  has  ratified 
the  sale  to  Schneider  and  Co.  by  inserting  their  name  as  buyer  to  a 
paper  in  which  he  recognizes  himself  as  seller."  That  was  the  case, 
therefore,  in  which  the  defendant  wrote  some  part  of  the  document 
which  contained  the  defendant's  name.  The  case  of  Evans  v.  Hoare, 
tibi  supra,  was  a  case  witli  reference  to  a  similar  question.  There  the 
defendant  by  his  agent  wrote  the  whole  document,  and  the  document 
contained  his  name  and  the  plaintiff"  signed  it,  and  the  ground  upon 
which  Denman,  J.,  rested  his  judgment  seems  to  me  to  be  this  :  "If  the 
part}'  sued  has  authorized  an  agent  to  la}'  before  the  party  suing  a 
document  containing  his  name  in  full  as  that  of  the  party  with  whom 
the  contract  is  to  be  made,  so  as  to  announce  to  the  other  party  that 
they  are  offering  him  certain  terms  if  he  will  agree  to  them  in  writing, 
and  he  thereupon  signs,  I  think  that  there  is  sufficient  '  agreement'  or 
memorandum  thereof  signed  by  a  party  authorized  thereunto  within 
sec.  4  of  the  Statute  of  Frauds."  Above  he  had  said  :  "In  fact,  the 
document  was  drawn  up  by  one  Harding,  who  was  authorized  by  the 
defendants  to  draw  it  up  and  take  it,  in  its  present  shape  in  all  other 
respects,  for  the  plaintiff's  signature."  So  that  in  this  case  it  was  a 
document  written  i)y  the  defendants  containing  the  defendant's  name, 
and  tendered  by  them  to  the  plaintiff  as  containing  the  terms  of  the 
contract,  and  then  signed  by  the  plaintiff.  Then,  Cave,  J.,  says : 
"  There  is  the  name  "  —  that  is  to  say,  the  defendant's  name  —  "  and 
it  was  inserted  by  the  defendant's  agent  in  a  contract  which  undoubt- 
edly was  intended  to  be  binding  on  the  plaintiff,  and  therefore  the  fact 
that  it  is  only  in  the  form  of  an  address  is^  immaterial."     That,  there- 


SECT.   II.]  HUCKLESBY  V.   HOOK.  631 

fore,  seems  to  me  to  be  the  principle  of  these  two  cases,  that  there  was 
a  writing  b}'  the  defendant,  or  by  an  agent  of  the  defendant,  of  some 
part  or  the  whole  of  a  document  containing  the  defendant's  name.  The 
other  case  proceeds  upon  a  somewhat  different  principle.  That  is  the 
caseofTorret  v.  Cripps,  27  W.  R.  706.  There  the  defendant  wrote 
and  sent  to  the  plaintiff  a  letter  containing  an  offer  of  a  lease  of  certain 
houses,  and  sufficiently  stating  the  terms,  but  he  did  not  sign  it.  The 
letter  was  written  on  a  sheet  of  memorandum  paper  at  the  head  of 
which  were  the  printed  words,  "From  Richard  L.  Cripps,"  with  his 
address.  The  plaintiff  accepted  the  offer,  the  defendant  did  not  grant 
the  lease,  and  the  plaintiff  commenced  an  action  for  specific  perform- 
ance. The  defendant  pleaded  the  Statute  of  Frauds.  The  Vice- 
Chancellor  put  his  judgment  upon  the  ground  :  "The  case  of  Schneider 
V.  Norris  before  Lord  Ellenborough  shows  the  principle  to  be  that 
where  a  part}-  desiring  to  sell  (as  was  the  case  of  the  defendant)  send 
to  the  party  desiring  to  bu}-  a  document  containing  the  name  of  the 
former  part}*,  though  it  may  be  in  print,  j'et  in  such  a  wa^'  as  to  show 
that  the  sender  recognizes  it  to  be  his  own  name,  and  the  document 
contains  terms  of  a  contract  that  is  a  sufiScient  note  in  writing  to 
charge  the  sender.  The  contention  which  has  been  addressed  to  me, 
that  it  is  necessary  to  show  that  there  was  a  custom  or  habit,  would 
lead  to  difficulties.  What  would  be  regarded  as  amounting  to  a  habit 
for  that  purpose?  Here  it  is  not  in  issue  that  the  document  upon  which 
the  defendant  is  charged  was  actuall}'  sent  by  him,  it  contains  his 
name,  and  it  is  not  disputed  that  the  document  with  that  exception  is 
in  the  defendant's  own  handwriting."  So  that  here  you  have  got, 
coupled  with  the  fact  that  the  defendant  wrote  the  document,  the  fact 
that  he  acted  upon  it  by  sending  it  to  the  plaintiff.  I  think  that  in- 
volves this  matter  of  principle,  that  it  may  be  a  signature  in  writing 
within  the  statute  for  a  person  to  take  a  document  and  hand  it  to  an- 
other and  sa}',  the  document  being  in  his  writing,  "  That  is  the  document 
which  I  ask  you  to  take  as  forming  the  contract  that  you  are  going  to 
sign."  Now  here  the  defendant  wrote  no  part  of  the  document  at  all. 
The  mere  fact  that  it  contained  his  name,  that  it  was  written  by  the 
plaintiff  and  addressed  to  him,  is,  I  think,  upon  many  grounds  insuffi- 
cient to  make  this  contract  within  the  statute.  It  appears  to  me  that 
the  contract  does  not  satisfy  the  statute,  and  that  there  is  nothing 
signed  by  the  defendant  to  bind  him,  and  I  have  only  got  to  look  to 
some  other  facts  which  have  been  given  in  evidence  to  see  if  there  is 
anything  which  can  carrv  the  matter  an}-  furtlier.  If  it  had  been 
proved  that  the  defendant  dictated  the  document,  actually  dictated  the 
words,  and  then  did  anything  equivalent  to  handing  it  to  the  plaintiff, 
and  said,  "  Sign  that  as  representing  the  contract  between  us,"  I  do 
not  say  tliat  might  not  liave  been  sufficient  for  the  purposes  of  the 
statute.  But  see  what  took  place.  The  plaintiffs  evidence  seems  to 
me,  even  if  there  was  no  more  in  the  case,  to  put  him  entirely  out  of 
the  court.     What  the  plaintiff  says  in  his  cross-examination  is  this ; 


632  BAILEY   V.   SWEETING.  [CHAP.   IV. 

"The  defendant  asked  me  to  write  that  I  would  give  590L  for  the  land, 
and  he  would  send  the  paper  on  to  his  solicitor,  and  his  solicitor  would 
communicate  with  me."  He  says  he  dictated  the  words  "Please  in- 
struct your  solicitor  to  forward  the  contract  to  me  signed."  That  is 
what  he  said  in  cross-examination.  In  re-examination  he  wanted  to 
add  something  as  to  the  word  "  signed."  Tlien  he  says  :  "The  defend- 
ant signed  nothing.  I  asked  him  to  countersign  the  letter.  He  said, 
*I  never  sign  a  document  out  of  the  presence  of  my  solicitor.  That/ 
he  said,  'is  business.'  "  After  that  answer,  it  seems  to  me  hopeless  to 
contend  that  this  was  a  document  which  the  defendant  recognized  as 
one  dictated  by  him  and  which  he  handed  to  the  plaintiff  and  said  : 
"Here  are  the  terms  of  agreement  between  us."  The  other  witness 
said  substantially  the  same.  Now  there  is  only  one  other  matter  that 
I  have  to  observe  upon,  and  that  is  as  to  some  points  in  the  contract 
itself.  It  finishes  thus  :  "  Please  instruct  your  solicitor  to  forward  the 
contract  to  be  signed."  If  nothing  arose  upon  the  Statute  of  Frauds  at 
all,  it  seems  to  me  that  that  involves  this,  coupled  with  the  evidence 
which  has  been  given  in  the  case,  that  this  was  not  to  be  the  contract 
between  the  parties.  This  is  not  one  of  the  cases  in  which  there  is  an 
agreement  made  by  offer  and  acceptance,  and  then  after  acceptance 
there  is  added  :  "  The  terms  of  this  are  to  be  included  in  a  more  formal 
contract."  It  is  not  a  case  in  which  this  document  is  not  to  be  the 
contract,  but  is  to  be  followed  by  something  to  be  signed  by  the  defend- 
ant which  is  to  be  the  contract.  Upon  all  these  grounds  it  appears  to 
me  that  the  plaintiff  fails  to  make  any  case  at  all  as  to  the  existence 
of  a  contract  at  law.  Then  he  says,  further,  that  there  were  repre- 
sentations made  to  him  that  Hook  was  the  owner  of  the  property, 
which  he  was  not,  and  that  he  was  entitled  in  an  action  of  deceit  to 
proceed  for  misrepresentation.  But  if  I  am  right  in  thinking  that  there 
was  no  contract,  and  even  assuming  (which  I  think  is  not  the  case) 
that  there  was  a  representation  by  Hook  that  he  was  the  owner,  it 
would  not  result  in  anything.  It  simply  produces  this,  that  the  plain- 
tiff did  not  as  the  result  enter  into  any  contract,  and  upon  these 
grounds  I  think  the  plaintiff's  case  entirely  fails,  and  I  dismiss  the 
action  with  costs. 


^      BAILEY    AND   Another  v.   SWEETING. 


In  the  Common  Pleas,  January  12,   17,  1861. 

[Reported  in  9  Common  Bench,  New  Series,  843.] 

This  was  an  action  brought  to  recover  a  sum  of  761.  14s.  3c?.  for 
goods  bargained  and  sold.  The  defendant  paid  38^.  8s.  9d.  into  court, 
and  as  to  the  rest  of  the  claim  pleaded  never  indebted. 

At  the  trial  before  Erle,  C.  J.,  at  the  sittings  in  London  after  last 
Easter  Term,  the  following  facts  appeared  in  evidence:  The  defendant 
was  a  furniture  dealer  at  Cheltenham  :  the  plaintiffs  were  manufacturing 


SECT.   II.]  BAILEY   V.   SWEETING.  633 

upholsterers  and  cabinet  makers  in  London.  In  Jul}-,  1859,  the  defend- 
ant called  at  the  plaintiffs'  place  of  business  in  London,  and  then  pur- 
chased five  chimney-glasses  (a  "job  lot,"  as  it  was  called),  which  were 
to  be  paid  for  by  check  on  delivery.  He  at  the  same  time  purchased 
other  goods  on  credit  to  the  amount  of  39/.  lOs.  19(?.,  some  of  which 
had  to  be  made  for  him.  The  chimne^'-glasses  were  packed  and  sent 
b}'  carrier,  addressed  to  the  defendant  at  Cheltenham.  They  were, 
however,  found  to  be  so  damaged  when  they  reached  their  destination 
that  the  defendant  refused  to  receive  them,  and  at  once  communicated 
such  refusal  to  the  plaintiffs. 

The  other  goods  were  subsequently  forwarded  at  three  different 
times,  with  separate  invoices,  and  were  duly  received  b}' the  defendant. 
The  value  of  these  parcels  was  covered  b}'  the  paj'ment  into  court : 
and  the  question  was,  whether  the  defendant  was  liable  in  respect  of 
the  chimney-glasses,  the  value  of  which  with  the  cases  was  38/.  10s.  ^d. 

On  the  part  of  the  plaintiffs  it  was  insisted  that  the  whole  of  the 
goods  were  sold  under  one  contract,  and  that  the  case  was  taken  out 
of  the  Statute  of  Frauds  (29  Car.  IL  c.  3,  s,  17)  b}-  the  acceptance  of 
part.  They  also  relied  upon  the  foUov^ing  letter  addressed  to  them  by 
the  defendant,  as  being  a  sufficient  memorandum  to  satisfj'  the  require- 
ments of  that  statute  : 

"  Cheltenham,  December  3d,   1859. 

"Gentlemen,  — In  reply  to  your  letter  of  the  1st  instant.  I  beg  to  say  that 
the  only  parcel  of  goods  selected  for  ready  money  was,  the  chimney-glasses, 
amounting  to  38/.  10,v.  tjrf.,  which  goods  I  have  never  received,  and  have  long 
since  declined  to  have,  for  reasons  made  known  to  you  at  the  time.  With 
regard  to  the  other  items,  viz.  \\l.  4s.  9r?.,  11/.  13s.,  and  13/.  13s.,  for  goods  had 
subsequently  (less  cases  returned),  those  goods  are,  I  believe,  subject  to  the 
usual  discount  of  5/.  per  cent ;  and  I  am  quite  ready  to  remit  you  cash  for 
these  parcels  at  once,  and,  on  the  receipt  of  your  reply  to  this  letter,  will 
instruct  a  friend  to  call  ou  you  and  settle  accordingly." 

For  the  defendant  it  was  Insisted  that  the  contract  for  the  chimney- 
glasses  was  a  separate  and  distinct  contract,  and  void  for  want  of  a 
sufficient  memorandum. 

His  lordship  (at  counsel's  request)  left  it  to  the  jurj'  to  say  whether 
the  bargain  for  the  chimney-glass  was  a  separate  and  distinct  bargain 
from  that  for  the  rest  of  the  goods,  telling  them  that,  if  thej'  were  of 
that  opinio^,  they  must  find  for  the  defendant. 

The  jury  found  that  the  two  were  separate  and  distinct  transactions 
and  accordingly  returned  a  A'erdict  for  the  defendant. 

Hawkins.,  Q.  C,  in  Trinit}'  Term  last,  pursuant  to  leave  reserved  to 
him  at  the  trial,  obtained  a  rule  nisi  to  enter  a  verdict  for  tiie  plaintiffs 
for  38/.  10s.  ^d.,  on  the  ground  that  the  defendant's  letter  of  the  3d  of 
December,  1859,  was  a  sufficient  memorandum  or  note  in  writing  to 
satisfy  the  statute,  or  for  a  new  trial  on  the  ground  that  the  verdict 
was  against  evidence. 

a.  James  and  Tompson  Chitty  showed  cause. 

Hawkins.,  Q.  C,  and  Kemplay,  in  support  of  the  rule. 


634  BAILEY  V.   SWEETING.  [CHAP.    IV. 

Erle,  C.  J.  This  was  an  action  for  goods  sold  and  delivered. 
There  was  an  oral  contract  for  the  sale  and  delivery  of  the  goods  in 
question  :  but  the  defendant  relies  upon  the  Statute  of  Frauds,  and 
contends  that  there  was  no  note  or  memorandum  of  the  bargain  in 
writing  to  satisfy  that  statute.  After  the  malving  of  the  oral  contract, 
however,  there  was  a  letter  written  b}-  the  vendee  to  the  vendors,  which 
contains  this  statement,  —  "  The  goods  selected  for  read^'  mone}'  was 
the  chimnej'-glasses,  amounting  to  38/.  10s.  6c/."  (the  goods  in  dispute), 
"  which  goods  I  have  never  received,  and  have  long  since  declined  to 
have,  for  reasons  made  known  to  you  at  the  time,"  — the  reason  being, 
that,  in  consequence  of  the  negligence  of  the  carrier  through  whom 
they  were  sent,  the  goods  were  damaged.  Now,  the  first  part  of  that 
letter  is  unquestionably  a  note  or  memorandum  of  the  bargain  :  it  con- 
tains a  description  of  the  articles  sold,  the  price  for  which  they  were 
sold,  and  all  the  substantial  parts  of  the  contract.  If  it  had  stopped 
there,  there  could  be  no  dispute  as  to  its  being  a  sufBcient  note  or 
memorandum  to  satisfy  the  statute.  It  is  clear  that  the  note  or  mem- 
orandum may  be  made  after  the  time  at  which  the  oral  contract  takes 
place  ;  and,  to  my  mind,  that  which  passed  orallj*  ])etween  the  parties 
on  the  subject  of  the  bargain  in  Jul}',  was  in  the  nature  of  an  inchoate 
contract,  and  the  subsequent  letter  had  a  retroactive  effect,  making  the 
contract  good  and  binding.  The  latter  part  of  the  defendant's  letter  in 
effect  says,  "  I  decline  to  take  the  goods  because  the  carrier  damaged 
them  in  their  transit :  "  and  it  is  contended  on  his  part  that  the  acknowl- 
edgment at  the  beginning  of  the  letter  does  not  constitute  a  sufficient 
memorandum  within  the  statute,  because  the  latter  part  contains  a  re- 
pudiation of  his  liabilit}',  —  relying  much  on  the  passage  cited  from  m}' 
Brother  Blackburn's  book  on  the  Contractor  Sale,  where  it  is  suggested 
that  a  subsequent  acknowledgment  in  writing  has  not  the  effect  of 
making  the  contract  good,  if  it  is  accompanied  by  a  repudiation  of  the 
defendant's  liability  under  it.  A  case  is  referred  to,  of  Rondeau 
V.  Wyatt,  2  H.  Bl.  63,  where  an  answer  to  a  bill  of  discovery,  in  which 
the  defendant  admitted  the  agreement,  was  held  not  to  preclude  him 
from  taking  the  objection  that  there  was  no  note  or  memorandum  to 
satisfy  the  Statute  of  Frauds.  We  have  adverted  to  the  authorities 
cited  in  Mr.  Justice  Blackburn's  book,  and  to  the  case  Roudeau 
V.  Wyatt ;  but  we  find  no  decided  autliority  upon  the  point  in  judgment. 
In  that  state  of  the  authorities,  we  are  remitted  to  the  Statute  of 
Frauds  itself:  and,  upon  reference  to  its  language,  we  think  the  defend- 
ant's letter  does  amount  to  a  sufficient  memorandum  in  writing,  and 
makes  tlie  contract  good.  The  purpose  of  the  statute  was,  to  prevent 
fraud  and  perjury.  Now,  tlie  danger  of  pcijury  in  this  case  is  effec- 
tually prevented  by  the  letter  of  the  defendnnt ;  for,  he  distinctly 
admits  that  he  made  the  contract,  and  at  the  price  alleged.  I  do  not 
consider  that  the  defendant  intended  to  deny  his  liability  by  reason 
of  the  absence  or  insufficiency  of  the  contract:  but  that  the  only  ques- 
tion which  he  intended  to  raise,  was,  whether  he  or  the  plaintiffs  should 
settle  with  the  carriers  for  the  damage  done  to  the  goods.     I  think  that 


SECT.    II.]  BAILEY   V.    SWEETING.     ,  635 

constitutes  a  material  distinction  between  the  present  case  and  those 
cited,  in  which  the  defendant,  admitting  the  contract,  has  rested  his 
defence  on  the  non-compliance  with  the  statute.  But,  if  there  be  no 
such  distinction,  and  we  are  called  upon  to  consider  whether  the 
doctrine  suggested  in  my  Brother  Blackburn's  book  correctly  represents 
the  law  upon  this  subject,  with  the  highest  respect  for  that  clear-headed 
and  bighl}'  eminent  judge,  I  must  say  that  I  am  unable  to  give  my 
assent  to  his  proposition.  I  think  the  purpose  of  the  Statute  of  Frauds 
is  answered  by  the  defendant's  letter,  and  the  plaintiffs  are  entitled 
to  recover. 

Williams,  J.^ — I  am  entirely  of  the  same  opinion.  It  cannot  for 
a  moment  be  controverted  here,  that  in  point  of  fact  there  was  a  good 
and  lawful  contract  between  the  plaintiffs  and  the  defendant  for  the 
sale  of  the  goods  in  question.  But  it  is  equally  clear,  that,  as  the  price 
of  the  goods  bargained  for  exceeded  the  value  of  10^.,  the  contract  was 
not  an  actionable  one  unless  the  requisites  of  the  17th  section  of  the 
Statute  of  Frauds  were  complied  with  ;  the  section  enacting,  "that  no 
contract  for  the  sale  of  an}'  goods,  wares,  and  merchandises  for  the 
price  of  10^.  sterling  or  upwards,  shall  be  allowed  to  be  good,  except 
(1)  the  buyer  shall  accept  part  of  the  goods  so  sold  and  actuallj"  receive 
the  same,  or  (2)  give  something  in  earnest  to  bind  the  bargain  or  in 
part  of  payment,  or  (3)  that  some  note  or  memorandum  in  writing  of 
the  said  bargain  be  made  and  signed  by  the  parties  to  be  charged  by 
si'ch  contract,  or  their  agents  thereunto  lawfully  authorized." 

The  effect  of  that  enactment  is,  that,  although  there  is  a  contract 
which  is  a  good  and  valid  contract,  no  action  can  be  maintained  upon 
it,  if  made  by  word  of  mouth  only,  unless  something  else  has  happened, 
e.  g.  unless  there  be  a  note  or  memorandum  in  writing  of  the  bargain 
signed  by  the  part}'  to  be  charged.  As  soon  as  such  a  memorandum 
comes  into  existence,  the  contract  becomes  an  actionable  contract. 
The  question,  therefore,  in  the  present  case,  is,  whether  such  a  memo- 
randum has  come  into  existence.  It  is  plain  to  my  mind  that  the  terms 
of  the  defendant's  letter  of  the  3d  of  December  do  constitute  such 
a  memorandum  as  the  statute  contemplated.  It  completely  recites 
all  the  essential  terms  of  the  bargain  :  and  the  onl}'  question. is  whether 
it  is  the  less  a  note  or  memorandum  of  the  bargain,  because  it  is 
accompanied  by  a  statement  that  the  defendant  does  not  consider  him- 
self liable  in  law  for  the  performance  of  it.  There  is  nothing  in  the 
statute  to  warrant  that.  I  think  the  statute  is  satisfied,  and  that 
the  contract  is  an  actionable  contract.     It  is  said  that  there  may  be 

1  In  the  course  of  the  argument  of  the  case  Williams,  J.,  said,  "  A  memorandnm 
given  after  action  hroujjht  will  not  do.  Bill  v.  Bament,  9  M.  &  W.  36.  The  rea.«on 
given  is,  that  the  cause  of  action  is  not  complete  until  the  memorandum  is  given. 
Parke,  B.,  there  says:  'There  must,  in  order  to  sustain  the  action,  be  a  good  contract 
in  existence  at  the  time  of  action  brought ;  and  to  malte  it  a  good  contract  under  the 
statute,  there  must  be  one  of  the  three  requisites  therein  mentioned.  I  think,  there- 
fore, that  a  written  memorandum,  or  part  payment,  after  action  brought,  is  not  suffi- 
cient to  satisfy  the  statute.' "  This  point  was  re-affirmed  in  Lucas  v.  Dixon,  22  Q.  B.  D. 
357.     But  see  contra,  Cash  v.  Clark,  61  Mo.  App.  636. 


636  GIBSON   V.   HOLLAND.  [CHAP.   IV." 

H  difficult}'  in  maintaining  this  doctrine,  in  consequence  of  the  incon- 
renience  which  ma}^  arise  from  the  property  not  passing  by  the  contract 
until  it  has  become  capable  of  being  enforced  by  action.  That 
may  be  true :  but  the  same  ma}-  be  said  as  to  part  acceptance  or  the 
payment  of  earnest,  and  yet  nobod}'  ever  suggested  a  doubt  that  an 
action  might  be  brought  upon  a  verbal  contract  where  either  of  these 
things  has  taken  place.  I  entireh'  agree  with  ni}-  Lord  in  his  apprecia- 
tion of  my  Brother  Blackburn's  book :  but,  after  full}'  considering  the 
proposition  which  has  been  cited  from  it,  and  the  reasoning  upon  which 
that  proposition  is  based,  I  feel  bound  to  say  that  I  do  not  consider 
it  satisfactory.  The  right  of  the  defendant  to  put  an  end  to  the  con- 
tract, if  any  such  right  existed,  ought  not  to  affect  the  question  whether 
there  was  a  valid  contract  or  not.  There  was  a  valid  contract,  and 
the  memorandum  was  a  sufficient  memorandum.  The  intention  of  the 
defendant  to  repudiate  or  abandon  the  contract  cannot  affect  the  ques- 
tion as  to  the  sufficiency  or  insufficiency  of  it. 

Bute  absolute  accordingly} 


GIBSON   AND  Another  v.  HOLLAND. 
In  the  Common  Pleas,  November  9,  1865. 

[Reported  in  Lav}  Reports,  1  Common  Pleas,  1.] 

This  was  an  action  to  recover  the  price  of  a  horse  bargained  and 
sold  by  the  plaintiffs  to  the  defendant. 

Plea  never  indebted. 

The  cause  was  tried  before  Willes,  J.,  at  the  last  Devonshire 
Summer  Assizes.  The  plaintiffs,  Gibson  and  Luke,  are  horse-dealers 
at  Exeter.  The  defendant  is  a  gentleman  who  occasionally  deals  in 
horses.  Having  heard  from  one  Rookes,  a  horse-dealer  of  Exeter, 
that  the  plaintiffs  had  a  mare  which  was  likely  to  suit  him,  and  having 
seen  and  approved  of  her,  the  defendant  authorized  Rookes  to  buy  her 
for  him,  if  he  could,  for  forty  guineas.  Rookes  accordingly  made  the 
purchase  at  that  price,  and  communicated  that  fact  to  the  defendant  in 
a  letter,  as  follows :  — 

"15th  May,  1865. 

"  I  have  heard  from  ]\Ir.  Gibson  and  seen  Tom  Luke  this  morning,  respect- 
ing the  bay  mare,  and  have  bought  her  for  forty  guineas.  Will  you,  therefore, 
forward  me  your  cheque,  with  instructions  how  she  is  to  be  sent  ? 

"  Wm.  Rookes." 

^  Willes  and  Keating,  JJ.,  delivered  concurring  opinions.  Wilkinson  v.  Evans, 
L.  R.  1  C.  P.  407  ;  Buxton  v.  Rust,  L.  R.  7  Ex.  279  ;  Drury  v.  Young,  5S  Md.  546  ; 
Heidemau  v.  Wolfstein,  12  Mo.  App.  366  ;  Cash  r.  Clark,  61  Mo.  App.  6.'36 ;  Louisville 
Varnish  Co.  v.  Lovick,  29  S.  C.  533,  ace.     See  Westmoreland  v.  Carson,  76  Te.x.  619. 

The  statutes  in  some  jurisdictions,  however,  require  the  "  contract "  to  he  in  writing. 
See  Montauk  Assoc,  v.  Daly,  62  N.  Y.  App.  Div.  101 ;  Sowards  f.  Moss,  58  Neb. 
119,  59  Neb.  71. 


SECT,   n.]  GIBSON   V.    HOLLAND.  6S7 

Receiving  no  reply,  Rookes  addressed  the  following  letters  on  the 
20th  and  23d  of  May,  1865,  respectivelj',  to  the  defendant :  — 

"  I  wrote  you  on  Monday  last  to  say  I  had,  in  accordance  with  your 
request,  purchased  Air.  Gibson^s  bay  mare  for  you  at  forty  guineas,  requesting 
you  would  send  me  a  cheque,  with  instructions  how  to  forward  her.  Not 
having  received  any  reply,  I  fear  you  must  have  been  absent.  Please  send 
me  cheque  at  once,  with  necessary  instructions. 

"Wm.  Rookes." 

"  I  cannot  but  express  my  surprise  at  not  having  received  any  reply  to  my 
letters  of  the  15th  and  20th.  In  the  first  /  informed  you  that  I  had  purchased 
Mr.  Gibson's  bay  mare  :  and  in  the  second  /  asked  you  to  send  a  cheque  for  the 
same,  viz.  42L,  in  order  that  I  may  settle  with  him.  Mr.  Luke  has  called 
again  this  morning;  and  it  makes  me  look  very  foolish,  as  of  course  they 
look  to  me  to  fulfil  my  contract ;  and  I  hope  that  you  will,  on  the  receipt  of 
this,  send  me  the  cheque,  with  the  necessary  instructions  how  the  mare  is  to 
be  forwarded.  Wm.  Rookes." 

On  the  25th  of  May,  1865,  the  defendant  wrote  to  Rookes  as 
follows :  — 

"  I  only  returned  home  yesterday  evening,  or  I  should  have  at  once 
answered  your  first  letter,  and  sent  you  a  cheque  for  the  mare  tuhich  you  were 
kind  enough  to  buy  for  me.  I  am  glad  to  say  I  have  sold  her  to  Mr.  Tonybee. 
When  I  told  him  of  her,  he  said  he  knew  her  well,  and  would  buy  her  from 
me,  which  he  did ;  and  you  will  receive  a  cheque  for  her  from  me  by  this 
evening's  post.  C.  Holland." 

On  the  26th  of  May,  Rookes  wrote  in  reply  to  the  last  letter :  — 

"  Mr.  Toynbee  has  never  seen  the  mare  that  you  have  purchased.  The  one 
he  alludes  to  I  sold  Mr.  Gibson  for  Sir  L.  P.,  and  she  is  not  for  sale  at  any 
price.  You  will,  therefore,  please  to  rectify  this  mistake,  and  send  me  your 
cheque,  as  it  is  a  fortnight  to-morrow  since  /  bought  her  for  you,  and  she  has 
been  standing  at  livery  ever  since.  Wm.  Rookes." 

On  the  10th  of  June,  Rookes  again  wrote  to  the  defendant  : — 

"Mr.  Gibson  and  Mr.  Luke  called  here  this  afternoon  ;  and,  as  they  have 
both  failed  in  seeing  you  in  London,  they  now  call  upon  me  to  complete  my 
contract  for  the  sale  of  the  mare.  You  are  fully  aware  that  you  commissioned 
me  to  buy  the  mare  for  you ;  and,  had  I  thought  there  would  have  been  any 
trouble  or  annoyance,  I  should  have  had  nothing  to  do  with  it  ;  but,  simply 
acting  as  your  agent,  I  must  request  that  you  will  at  once  remit  me  your 
cheque  for  421.,  cost  price,  together  with  half  the  keep,  two  guineas,  as  it  is  a 
month  ago  next  Monday  that  I  bought  her  for  you,  and  she  has  been  standing 
at  livery  ever  since,  and  they  have  a  perfect  right  to  claim  the  whole  of  the 
keep.  Wm.  Rookes." 

On  the  16th  of  June,  Rookes  again  wrote  to  the  defendant :  — 

"  Messrs.  Gibson  &  Luke  have  been  and  seen  me  again  to-day  respecting  the 
bay  mare  which  you  told  me  to  purchase  foom  them  for  you ;  and  they  have 
thi-eatened  me  with  an  action,"  &c. 

Rookes  having    on   the    17th   of  June  received    a  letter   from   the 


638  GIBSON   V.   HOLLAND.  [CHAP.    IV. 

plaintiffs'  attorneys,  demanding  payment  from  him  of  46^.,  alleged 
to  be  due  from  him  for  a  brown  mare  sold  b}-  them  to  him,^  and  her 
keep,  sent  it  to  the  defendant,  writing :  — 

"  This  morning's  f)Ost  brought  me  the  enclosed  from  Messrs.  Gibson  & 
Luke's  sohcitors  ;  I  really  do  hope  that  you  will  not  allow  me  to  be  put  to  any 
further  trouble  or  annoyance  in  this  most  unpleasant  matter,  but  at  once 
remit  your  cheque  either  to  me.  [sic]  If  they  sue  me,  I  have  no  alternative 
but  to  sue  them  or  you." 

On  the  part  of  the  defendant  it  was  objected  that  there  was  no 
contract  in  writing  to  satisfy  the  17th  section  of  the  Statute  of  Frauds, 
29  Car.  II.  c.  3.  For  the  plaintiffs  it  was  insisted  that  the  corre- 
spondence amounted  to  a  contract,  or.  at  all  events  to  a  sufficient 
memorandum   of  a   contract   to  charge  the  defendant. 

Under  the  direction  of  the  learned  judge,  a  verdict  was  found  for 
the  plaintiffs  for  the  sum  claimed,  reserving  to  the  defendant  leave  to 
move. 

jKurslake,  Q.  C,  moved  to  enter  a  nonsuit. 

Erle,  C.  J.^  I  am  of  opinion  that  there  should  be  no  rule.  The 
contract  for  the  purchase  of  the  mare  in  question  was  made  by 
Rookes.  If  Rookes  was  the  agent  of  both  parties,  there  was  nothing 
to  reserve ;  therefore  I  place  no  reliance  on  that.  But  I  am  of 
opinion  that  the  letters  put  in,  taken  together,  do  amount  to  a  suffi- 
cient note  or  memorandum  of  the  contract  within  the  17th  section  of 
the  Statute  of  Frauds.  Apart  from  the  statute,  it  is  beyond  doubt 
that  Rookes  made  a  contract  on  behalf  of  the  defendant  to  buy  the 
plaintiffs'  mare.  The  defendant  relies  upon  the  17th  section,  which 
enacts  that  no  contract  for  the  sale  of  an}'  goods,  &c.,  for  the  price  of 
10/.  or  upwards,  shall  be  allowed  to  be  good,  except  the  buyer  shall 
accept  part  of  the  goods  so  sold,  and  actually  receive  the  same,  or  give 
something  in  earnest  or  part  payment,  or  unless  "  some  note  or 
memorandum  in  writing  of  the  said  bargain  be  made  and  signed  by  the 
parties  to  be  charged  by  such  contract,  or  their  agents  thereunto  law- 
fully authorized."  The  defendant's  letters  amount  to  a  clear  admission 
that  Rookes  did  make,  on  his  behalf,  the  contract  which  is  described 
in  that  correspondence.  But  the  objection  relied  on  is,  that  the  note 
or  memorandum  of  that  contract  was  a  note  passing  between  the 
defendant,  the  party  sought  to  be  charged,  and  his  own  agent,  and 
not  between  the  one  contracting  party  and  the  other.  The  object 
of  the  Statute  of  Frauds  was,  the  prevention  of  perjury  in  the 
setting  up  of  contracts  by  parol  evidence,  which  is  easily  fabricated. 
With  this  view,  it  requires  the  contract  to  be  proved  by  the  pro- 
duction of  some  note  or  memorandum  in  writing.  Now,  a  note  or 
memorandum  is  equally  corroborative,  whether  it  passes  between  the 
parties  to  the  contract  themselves,  or  between  one  of  them  and  his 
own  agent.     Indeed,  one  would  incline  to  think  that  a  statement  made 

*  WiLLES,  J.,  delivered  a  concurring  opinion.     Keating,  J.,  also  concurred. 


SECT.    II.]  GIBSON   V.    HOLLAND.  639 

b}-  the  party  to  his  own  agent  would  be  the  more  satisfactory  evidence 
of  the  two.  Then,  how  stand  the  authorities  on  the  subject?  In 
Leroux  v.  Brown,  12  C.  B.  818,  22  L.  J.  (C.  P.)  1,  in  support  of 
the  position  that  a  letter  addressed  by  the  defendant  to  a  third  person, 
containing  an  admission  of  a  contract  with  the  plaintiff,  will  be 
enough  to  charge  the  former,  Sir  G.  Honyman  refers  to  Sugden's 
V.  &  P.,  11th  ed.  122,  where  it  is  said  that  "a  note  or  letter  written 
by  the  vendor  to  any  third  person,  containing  directions  to  carry  the 
agreement  into  execution,  will  be  a  sufficient  agreement  to  take  a 
case  out  of  the  statute  ;  "  and  for  this  the  learned  author  vouches  Lord 
Hardwicke,  who,  in  AVelford  v.  Beazely,  3  Atk.  503,  says:  "The 
meaning  of  the  statute  is,  to  reduce  contracts  to  a  certaint}-,  in  order 
to  avoid  perjury  on  the  one  hand  and  fraud  on  the  other;  and,  there- 
fore, both  in  this  court  and  the  courts  of  common  law,  where  an 
agreement  has  been  reduced  to  such  a  certainty-,  and  the  substance 
of  the  statute  has  been  complied  with  in  the  material  part,  the  forms 
have  never  been  insisted  on.  Hawkins  v.  Holmes,  1  P.  Wms.  770. 
There  have  been  cases  where  a  letter  written  to  a  man's  own  agent, 
and  setting  forth  the  terms  of  an  agreement  as  concluded  b}-  him,  has 
been  deemed  to  be  a  signing  within  the  statute,  and  agreeable  to  the 
provisions  of  it."  See  Clerk  v.  Wright,  1  Atk.  12.  Sir  E.  Sugden 
goes  on  to  say  that.  "  the  point  was  expressly  determined  in  the  year 
1719,  in  the  Court  of  Exchequer.  Upon  an  agreement  for  an  assign- 
ment of  a  lease,  the  owner  sent  a  letter,  specif\'ing  the  agreement, 
to  a  scrivener,  with  directions  to  draw  an  assignment  pursuant  to 
the  agi-eement ;  and  Chief  Baron  Bur}-,  Baron  Price,  and  Baron  Page 
were  of  opinion  that  the  letter  was  a  writing  within  the  Statute  of 
Frauds  "  :  Smith  v.  Watson,  Bunb.  55.  These  cases,  it  is  true,  arose 
upon  the  4th  section  of  the  statute,  but  the  analogy  holds  equally 
good  as  to  the  17th  section.  In  the  case  referred  to  by  m}-  Brother 
Willes,  of  Bailey  v.  Sweeting,  9  C.  B.  (n.  s.)  843,  30  L.  J.  (C.  P.)  150, 
this  court  went  very  fully  into  the  general  doctrine,  and  came  to  the 
conclusion  that  a  letter  which  contained  an  admission  of  the  bargain, 
and  of  all  the  substantial  terms  of  it,  was  a  sufficient  note  or  memo- 
randum of  the  contract  to  satisfy  the  17th  section,  notwithstanding 
the  writer  repudiated  his  liability.  To  satisfy  the  statute,  you  must 
.  have  the  oral  statement  of  the  contract  corroborated  by  an  acceptance 
of  part  of  the  goods  or  a  part-payment  of  the  price,  or  yoH  must  have 
some  note  or  memorandum  in  writing  of  the  bargain.  If  so,  the 
danger  of  perjury,  which  the  statute  was  designed  to  exclude,  is 
abundantly  guarded  against  if  there  be  a  written  statement  of  the 
terms  of  the  contract,  signed  by  the  party  to  be  charged,  made  to  an 
agent.  For  these  reasons,  I  feel  bound  to  hold  that  the  requirements 
of  the  statute  have  been  complied  with  in  this  case,  and  consequently 
that  there  should  be  no  rule.^ 

1  Moore  v.  Hart,  1  Yarn.  110  ;  Ayliffe  v.  Tracy,  2  P.  "Wms.  65 ;  Owen  i'.  Thomas, 
1  Myl.  &  K  353;  Moss  v.  Atkinson,  44  Cal.  3;  Spangler  v.  Danforth,  65  111    152; 


640  BECKWITH  V.  TALBOT.  [CHAP.  IV. 

BECKWITH   V.   TALBOT. 
Supreme  Court  of  the  Ukited  States,  October  Term,  1877. 

[Reported  in  95  United  States,  289.] 

Mr.  Justice  Bradley  delivered  the  opinion  of  the  court. 

This  was  an  action  brought  b}-  Talbot  against  George  C.  Beckwith 
in  the  District  Court  of  Colorado  for  the  County  of  Fremont,  to  re- 
cover damages  for  the  breach  of  a  contract  alleged  to  have  been  made 
on  the  7th  of  October,  1870,  between  the  plaintiff  and  two  others  on 
the  one  part,  and  the  defendant  on  the  other,  whereby  the}'^  were  to 
herd  and  care  for  a  large  herd  of  cattle  for  the  defendant,  from  that 
time  until  the  fifth  day  of  December,  1872,  for  which  he  was  to  give 
them  one-half  of  what  the  cattle  and  their  increase  should  then  bring 
over  $36,681.60  ;  that  is,  to  each  one-third  of  such  half.  The  declara- 
tion alleged  that  the  plaintiff  and  the  two  persons  who  entered  into  the 
contract  together  with  him  (who  were  the  sons  of  the  defendant)  per- 
formed their  part  of  it,  but  that  the  defendant  refused  to  sell  the  cattle, 
or  to  pay  the  plaintiff  his  share  of  their  value  above  the  said  sum. 

On  the  trial,  two  defences  were  relied  on  which  are  made  the  subject 
of  assignments  of  error  here :  First,  that  the  alleged  contract  was 
void  b}'  the  Statute  of  Frauds,  because,  though  not  to  be  performed 
within  a  3'ear,  it  was  not  in  writing  signed  by  the  defendant ;  secondly, 
that  it  was  a  joint  contract  on  which  the  plaintiff  could  not  maintain  a 
separate  action. 

The  territorial  Statute  of  Frauds  declares  that  "every  agreement 
which  by  its  terms  is  not  to  be  performed  within  a  year  unless  some 
note  or  memorandum  thereof  be  in  writing  and  subscribed  by  the  party 
chargeable  therewith,  shall  be  void."  The  verbal  difference  between 
this  statute  and  that  of  Charles  II.  is  not  material  in  this  case. 

It  appeared  on  the  trial  that  the  agreement  made  by  the  parties  was 
committed  to  writing  at  the  defendant's  instance,  and  was  in  the  fol- 
lowing words,  to  wit :  — 

"  Wet  Mountain  Valley,  Oct.  7,  1870. 

*'  This  is  to  certify  that  the  undersigned  have  taken  two  thousand  two 
hundred  and  five  head  of  cattle,  valued  at  $36,681.60  on  shares  from  George 
C.  Beckwith ;  time  to  expire  on  the  fifth  day  of  December,  1872;  then  George 
C.  Beckwith  to  sell  the  cattle  and  retain  the  amount  tlie  cattle  are  valued  at 
above.  Of  the  amount  the  cattle  sell  at  over  and  above  the  said  valuation, 
George  C.  Beckwith  to  retain  one-half  and  the  other  half  to  be  equally  di- 
vided between  C.  W.  Talbot,  and  Elton  T.  Beckwith,  and  Edwin  E.  Beckwith. 
(Signed)  "  C.  W.  Talbot. 

"Elton  T.  Beckwith. 

"  Edwin  F.  Beckwith." 

"Wood  V.  Davis,  82  111.  311  ;  Fugate  v.  Hansford's  Ex.,  3  Litt.  262;  Kleeman  v. 
Collins,  9  Bush  (Ky.),  460;  Moore  v.  Mountcastle,  61  Mo.  424;  Cunningham  v. 
WillianiB,  43  Mo.  App.  629  ;  Cash  v.  Clark,  61  Mo.  App.  636  ;  Mizell  v.  Burnett, 
4  Jones  L.  (n.  c.)  249  ;  Lee  v.  Cherry,  85  Tenn.  707,  arc.  First  Nat.  Bank  of 
riattsburgh  v.  Sowles,  46  Fed.  Hep.  731;  Kinloch  v.  Savage,  Speers  Eq.  464; 
Buck  V.  Pickwell,  27  Vt.   157,   167,  semble  contra. 


SECT.   II.]  BECKWITH  V.  TALBOT.  641 

This  agreement  was  signed  b}'  the  plaintiff  and  the  two  3'oung  Beck- 
withs,  but  was  not  signed  b}-  the  defendant.  It  was  delivered  to  him, 
however,  and  was  kept  by  him  nntil  he  produced  and  proved  it  on  the 
trial.  It  was  conceded  b}-  both  parties  that  this  was  the  agreement 
under  which  the  services  of  the  plaintiff  were  performed. 

Two  letters  written  by  the  defendant  to  the  plaintiff  on  the  subject- 
matter  of  the  contract,  and  whilst  he  had  the  said  agreement  in  his 
possession,  and  whilst  it  was  being  executed  b}'  the  plaintiff,  namely, 
one  on  the  21st  of  September,  1872,  and  the  other  on  the  10th  of 
November,  1872,  were  also  produced  in  evidence  j  from  which  the 
following  are  extracts  :  — 

"Denver,  Sept.  21,  1872. 

"  Mr.  Talbot,  Sir,  —  On  my  arrival  from  the  mountains,  I  received  your 
letter.  As  I  have  wrote  you  before,  every  day  I  see  parties  here  that  is  offer- 
ing their  cattle  very  low.  ...  I  have  used  every  exertion  for  the  last  three 
mouths  to  sell.  .   .  . 

"  You  suggest  giving  you  a  part  of  the  cattle.  That  is  entirely  outside  of 
the  agreement.  Also,  where  would  be  the  interest  on  the  amount  put  in  the 
cattle  coming  from  V  And  also  Elton  and  Edwin  would  be  glad  to  do  the 
same;  but  at  that  rate  I  would  not  get  my  money  back  I  put  into  the  cattle. 

"  The  cattle  must  be  sold  and  settled  up  according  to  the  agreement.  I  will 
do  everything  I  can  to  sell  at  the  best  advantage,  and  you  shall  have  every 
chance  to  get  a  purchaser  for  the  cattle  so  as  to  make  the  most  out  of 
them.  .  .   . 

"  You  shall  have  no  chance  to  complain  in  my  keeping  up  to  the  agreement, 
as  I  shall  strictly,  although  I  have  heard  you  have  made  complaints  to  parties, 
which  I  think  is  veiy  unfair,  and  the  parties  you  told  so  said  so  too.  .  .  . 

"  Yours  respectfully,  George  C.  Beckwith." 

"Denver,  Nov.  10,  1872. 

"  Mr.  Talbot,  Sir,  —  At  first  I  thought  it  useless  to  answer  your  letter,  as 
I  am  bound  by  the  agreement  to  sell  the  cattle  in  a  very  short  time.  ...  I 
notified  you  to  get  a  purchaser  for  the  cattle  months  ago ;  and  what  have  I 
received  from  you  in  return  and  for  my  pay  ?  I  must  say  I  have  never  been 
treated  so  meanly  by  a  man  in  my  life.  My  rights  was  to  sell  the  cattle. 
Does  the  agreement  say  that  I  was  to  say  anything  to  you  or  to  any  one  else  ? 

"  But  what  next  ?  You  quarrelled  with  me  because  I  would  not  break  the 
agreement  and  give  you  the  cattle  to  sell  at  figures  less  than  I  had  kept  them 
in  Denver  for  sale.  Xow,  I  have  been  offered  $31,000  for  the  cattle.  I  have 
written  to  Edwin,  and  he  will  state  to  you  what  I  wrote  him  to  say  to  you. 

"Yours  in  haste,  George  C.  Beckwith." 

We  agree  with  the  Supreme  Court  of  Colorado  that,  in  the  face  of 
this  evidence,  produced  b}'  the  defendant  himself,  he  cannot  den}'  the 
validit}^  of  the  agreement.  His  letters  are  a  clear  recognition  of  it. 
In  them  he  refers  to  ''  the  agreement"  again  and  again.  He  declares 
his  intention  to  adhere  to  it,  and  to  hold  the  plaintiff  to  it.  AVhat 
agreement  could  he  possibly  refer  to  but  the  only  one  which,  so  far  as 
appears,  was  ever  made:  the  one  which  he  took  into  his  possession, 

VOL.   I.  —  41 


642  BECKWITH  V.  TALBOT.  [CHAP.  IV. 

and  then  had  in  his  possession ;  the  one  under  which  it  was  conceded 
the  parties  were  then  acting?  The  defendant,  being  examined  as  a 
witness  on  his  own  behalf,  and  testifying  with  regard  to  the  contract 
between  the  parties,  said,  ''  The  matter  was  all  talked  over,  and,  I 
thought,  understood.  I  said  to  my  son  Elton  :  '  You  understand  the 
matter.  Will  you  take  a  pen  and  paper  and  write  the  contract?'  He 
wrote  it.  Talbot  read  it  and  signed  it,  and  tlien  my  sons  signed  it." 
On  cross-examination,  he  said,  "  The  contract  was  delivered  to  me 
after  it  was  signed,  and  has  remained  in  my  possession  ever  since  until 
this  trial." 

It  is  undoubtedl}'  a  general  rule  that  collateral  papers,  adduced  to 
supply  the  defect  of  signature  of  a  written  agreement  under  the  Statute 
of  Frauds,  should  on  their  face  sufficiently  demonstrate  their  reference 
to  such  agreement  without  the  aid  of  parol  proof.  But  the  rule  is  not 
absolute.  Johnson  v.  Dodgson,  2  M.  &  W.  653  ;  Salmon  Falls  Co. 
V.  Goddard,  14  How.  446.  There  ma}'  be  cases  in  which  it  would  be  a 
violation  of  reason  and  common  sense  to  ignore  a  reference  which 
derives  its  significance  from  such  proof.  If  there  is  ground  for  any 
doubt  in  the  matter,  the  general  rule  should  be  enforced.  But  where 
there  is  no  ground  for  doubt,  its  enforcement  would  aid,  instead  of 
discouraging,  fraud.  Suppose  an  agreement  be  made  out  and  signed 
b}'  one  of  the  parties,  the  other  being  absent.  On  the  following  day, 
the  latter  writes  to  the  part}'  who  signed  it  as  follows :  "  My  son  in- 
forms me  that  3'ou  yesterday  executed  our  proposed  agreement,  as 
prepared  b}'  J.  S.  I  write  this  to  let  you  know  that  I  recognize  and 
adopt  it."  Would  not  this  be  a  sufficient  recognition,  especially  if  the 
parties  should  act  under  the  agreement?  And  j'et  parol  proof  would 
be  required  to  show  what  agreement  was  meant.  The  present  case  is 
as  strong  as  that  would  be.  In  our  judgment,  the  defendant,  unless 
he  could  show  the  existence  of  some  other  agreement,  was  estopped 
from  denying  that  the  agreement  referred  to  b}'  him  in  his  letters  was 
that  which  he  induced  the  plaintiff  to  sign,  and  which  he  put  in  his 
pocket  and  kept,  and  sought  to  enforce  against  the  plaintiff  for  two 
whole  years. 

On  this  point,  therefore,  we  are  clearly  of  opinion  that  no  error  was 
committed  by  the  court  below. 

The  allegation  that  the  plaintiff  was  interested  jointh*  with  the  de- 
fendant's two  sons,  and,  therefore,  could  not  maintain  a  separate  action 
for  his  equal  share  of  the  profits,  is  equalh'  untenable.  Their  interests 
were  separate.  They  were  all  employed  and  hired  by  the  defendant 
to  herd  his  cattle.  The  evidence  shows  that  each  supported  himself, 
found  his  own  assistance,  and  paid  his  own  expenses.  Each  was  to 
have  as  his  compensation,  one-third  of  half  the  increased  value  of  the 
cattle  at  the  end  of  the  employment.  Neither  was  interested  in  the 
compensation  due  to  the  other.  Sergeant  Williams,  in  his  note  to 
Eccleston  v.  Clipsham,  1  Saund.  154,  says,  "Though  a  man  covenant 
with  two  or  more  jointly,  yet  if  the  interest  and  cause  of  action  of  the 


SECT,    n.]  BECKWITH  V.  TALBOT.  643 

covenants  be  several  and  not  joint,  the  covenant  shall  be  taken  to  be 
several,  and  each  of  the  covenantees  may  bring  an  action  for  his  par- 
ticular damage,  notwithstanding  the  words  of  the  covenant  are  joint." 
In  the  present  case,  the  cause  of  action  was  the  service  performed 
under  the  contract ;  and  each  performed  his  own  distinct  service,  and 
was  entitled  to  distinct  and  separate  compensation  therefor.  The  case 
is  precisely  within  the  category  stated  by  the  learned  annotator.  It  is 
ver}'  similar  also  to  that  of  Servante  and  Others  v.  James,  10  B.  &  C. 
410,  where  the  master  of  a  vessel  covenanted  with  the  several  part- 
owners  to  paj'  to  them  severalh'  in  certain  proportions  the  moneys 
which  he  should  receive  from  the  government  for  canning  the  mails  ; 
and  it  was  held  that  the  covenant  inured  to  them  severally'  and  not 
jointly,  because  their  interests  were  several.  The  case  is  also  quite 
similar  to  that  of  an  engagement  with  seamen  for  a  whaling  voyage, 
where  each  is  to  receive  for  his  compensation  a  certain  percentage 
of  the  profits  of  the  vo^'age.  Though  the}'  work  together  and  in  co- 
operation, they  do  not  become  partners,  nor  does  either  acquire  any 
interest  in  the  compensation  of  the  others.  The  interest  of  each  is 
separate. 

In  the  present  case,  the  material  fact  is  that  the  plaintiff  and  his 
associates  were  employes,  and  not  proprietors.  They  were  in  the  ser- 
vice of  the  defendant,  and  employed  in  and  about  his  property  and 
business,  and  not  their  own.  Hence  they  were  not  partners,  either 
with  each  other  or  with  him.  The}"  were  not  liable  for  any  losses. 
The  entire  responsibility  for  these  was  on  him.  They  were  only  in- 
terested in  the  losses  as  they  might  affect  the  amount  of  their  ultimate 
compensation. 

These  considerations  dispose  of  another  point  made  b}'  the  plaintiff 
in  error,  though  not  distinctly  assigned  for  error ;  namely,  that  the 
contract  created  a  partnership  between  the  defendant  and  the  other 
parties  to  it.  No  such  result  was  intended,  nor  does  it  follow  from 
any  fair  construction  of  the  contract.  There  was  no  community  of 
interest  in  the  capital  employed,  nor  in  the  profits  and  losses.  The 
cattle  remained  the  entire  property  of  the  defendant.  If  the  whole 
herd  had  perished  by  distemper,  it  would  have  been  his  loss  alone,  and 
the  other  parties  would  only  have  been  interested  in  the  loss  of  com- 
pensation for  their  services. 

Judgment  affirmed.^ 

^  lu  Darling  v.  Camming,  92  Va.  521,  the  words  in  a  signed  paper  promising  per- 
formance, "  according  to  an  understanding  between  us,"  were  held  an  insufficient 
reference  to  unsigned  paper  containing  a  statement  of  the  understanding. 

On  the  general  question  of  the  right  to  read  several  papers  together  to  make  out  a 
memorandum,  see  Browne,  §  346  b,  et  seq.,  2  L.  R.  A.  212. 


644  LEKNED    V.    WANNEMACHER.  [CHAP.    IV. 

THOMAS  P.    LERNED    and   Another  v.    CHARLES 
WANNEMACHER   and   Another. 

Supreme  Judicial  Court  of  Massachusetts,  November,  1864. 

[Reported  in  9  Allen,  412.] 

Contract  brought  to  recover  damages  for  the  faiUire  to  deliver  a 
quantity  of  coal,  sold  by  the  defendants  to  the  plaintiffs.  One  ground 
of  defence  was,  that  the  contract  was  not  binding  because  not  ex- 
ecuted in  conformity  to  the  statute  of  frauds. 

At  the  trial  in  the  superior  court,  before  Morton,  J.,  the  plaintiffs 
introduced  evidence  tending  to  show  the  following  facts :  Albert 
Betteley  was  authorized  to  sign  contracts  for  the  sale  of  coal,  in 
behalf  of  the  defendants,  who  were  commission  merchants  in  Phil- 
adelphia, under  the  firm  of  Wannemacher  &  Maxfield.  On  the  31st 
of  March,  1863,  the  plaintiffs  made  a  parol  contract  for  the  purchase  of 
one  thousand  tons  of  coal  of  Betteley,  as  agent  of  the  defendants, 
according  to  the  terms  of  the  written  memorandum  hereinafter  set 
out.  The  plaintiffs  then  signed  and  delivered  to  Bettelej-,  as  agent  of 
the  defendants,  a  memorandum  of  the  contract,  partly  written  and 
partly  printed,  as  follows,  the  written  parts  being  here  put  in  Italics : 

"  Coal,  when  delivered  on  board  of  vessels,  boats,  or  barges,  to  be  in  all 
respects  at  the  purchaser's  risk;  bills  of  lading,  or  other  regular  testimony  of 
shipment,  to  be  proof  of  such  delivery,  both  as  to  time  and  quantity.  Each 
cargo  of  coal  to  be  settled  for  from  time  to  time  as  delivered,  in  the  mode 
specified  in  the  contract.  Captains  of  vessels  sent  by  purchasers  for  their 
coal,  to  bring  written  orders,  and  take  each  his  regular  turn  in  loading.  All 
possible  despatch  will  be  given  in  loading,  but  no  claims  will  be  allowed  for 
demurrage,  nor  for  the  consequences  of  unavoidable  delay.  No  responsibility 
assumed  as  regards  procuring  vessels,  boats,  or  barges ;  but  every  exertion 
will  be  used  to  engage  them.  Every  effort  will  be  made  for  the  fulfilment  of 
this  contract;  but  if  prevented  or  obstructed  by  breaches,  or  other  unavoid- 
able occurrences,  on  the  canals  or  railroads,  or  at  the  mines,  or  by  combina- 
tions, strikes,  or  turn-outs  among  miners,  boatmen,  or  laborers,  no  claim  for 
damages  will  be  allowed.  Wannemacher  &  Maxfield,  commission  merchants, 
Philadelphia.     Boston,  March  31,  1863. 

"  On  the  above  terms  and  conditions,  please  deliver  on  board,  at  your 
wharves  at  Philadelphia,  to  be  shipped  to  Cambridgeport,  10  feet  of  water,  7 
bridges,  1000  tons Swatara  :  800  Stove,  200  Egg  ;  Sivatara  ;  $4.50. 

"  Terms  cash,  or  approved  paper  at  interest,  added  from  date  of  bill  of 
lading,  or  other  proof  of  shipment;  United  States  tax  to  be  added.  We  will 
send  our  otvn  vessels.  After  first  cargo  is  shipped,  the  purchaser  has  the  right  to 
refuse  the  balance  if  not  satisfactory.      T.  P.  Lerned  Sf  Son." 

At  the  same  time  Betteley  signed  the  name  of  "Wannemacher  & 
Maxfield,  by  Albert  Bettelej-,"  to  a  memorandum  precisely  similar  to 
the  above  in  every  respect,  except  that  the  name  of  the  plaintiffs  was 
not  signed  to  it,  and  delivered  the  same  to  the  plaintiffs.     Two  or  three 


SECT,    n.]  LERNED  V.   WANNEMACHER.  645 

weeks  afterwards  Bettele}',  as  agent  of  the  defendants,  wrote  upon  the 
back  of  the  memorandum  delivered  to  him  by  the  plaintiffs  these  words  : 
"To  be  shipped  immediatel}-,  if  vessels  are  not  sent ;  "  and  the  plaintiffs 
signed  the  same,  and  redelivered  the  memorandum  to  him.  Both  of 
the  above  papers  were  put  in  evidence  by  the  plaintiffs,  the  one  signed 
by  them  being  produced  b}'  the  defendants  on  notice.  The  price  of 
coal  subsequently  increased  in  the  market,  and  the  defendants  refused 
to  deliver  the  said  one  thousand  tons. 

Upon  the  introduction  of  this  evidence,  the  judge  ruled  that  the 
action  could  not  be  maintained,  and  a  verdict  was  accordingly  taken 
for  the  defendants.     The  plaintiffs  alleged  exceptions. 

G.  A.  Somerby,  for  the  plaintiffs. 

C.  A.  Welsh^  for  the  defendants. 

Hoar,  J.  The  ruling  to  which  exceptions  were  taken  at  the  trial 
was  this  :  that  the  plaintiffs  could  not  maintain  their  action  upon  the 
contract  set  forth  in  the  declaration,  because  it  was  a  contract  for  the 
sale  of  merchandise  for  the  price  of  more  than  fifty  dollars,  and  there 
was  no  acceptance  of  any  part  of  the  goods,  or  giving  anything  in 
earnest  to  bind  the  bargain,  or  part  payment,  and  no  sufficient  note 
or  memorandum  in  writing  of  the  bargain  made  and  signed  b\'  the 
defendants,  or  by  any  person  thereunto  by  them  lawfull}'  authorized. 
Gen.  Sts.  c.  105,  §  5.  And  the  question  before  us  is  of  the  sufficiency 
of  the  memorandum  produced. 

The  first  objection  is,  that  neither  the  memorandum  signed  by  the 
purchasers  and  delivered  to  the  sellers,  nor  the  counterpart  signed  by 
the  sellers  and  delivered  to  the  purchasers,  contains  in  itself  a  complete 
statement  of  the  bargain  ;  that  there  is  nothing  in  the  papers  themselves 
by  which  they  can  be  connected,  and  it  is  not  sufficient  to  connect  them 
bj'  parol ;  and  that  if  connected  they  are  onl}'  orders,  and  do  not  amount 
to  a  contract. 

On  examining  the  memorandum  retained  by  the  sellers  which  is 
signed  by  the  plaintiffs,  we  think  it  is  a  complete  memorandum  of  the 
bargain  proved,  and  would  undoubtedl}'  have  been  sufficient  in  an 
action  by  the  defendants  against  the  plaintiffs.  It  must  be  observed 
that  the  contract  itself,  and  the  memorandum  which  is  necessarj'  to  its 
validity  under  the  statute  of  frauds,  are  in  their  nature  distinct  things. 
The  statute  presupposes  a  contract  by  parol.  Marsh  v.  Hyde,  3  Gray, 
333.  The  contract  may  be  made  at  one  time,  and  the  note  or  memoran- 
dum of  it  at  a  subsequent  time.  The  contract  may  be  proved  by  parol, 
and  the  memorandum  ma}'  be  supplied  by  documents  and  letters,  written 
at  various  times,  if  the}'  all  appear  to  have  relation  to  it,  and  if  coupled 
together,  the}'  contain  by  statement  or  reference  all  the  essential  parts 
of  the  bargain,  signed  by  the  party  to  be  chai-ged  or  his  agent. 
William  v.  Bacon,  2  Gray,  387.  Now  it  was  proved  by  parol  testimony 
that  the  contract  declared  on  was  made  orally  by  the  defendants, 
through  their  agent,  with  the  plaintiff ;  and  that  the  memorandum  was 
delivered  to  the  defendants  by  the  plaintiffs  as  a  statement  of  the 
terms  of  the  bargain.     In  the  printed  part,  it  is  spoken  of  as  "this 


646  LERNED   V.    WANNEMACHER.  [CHAP.   IV. 

contract,"  and  "the  contract."  It  recites  that  "  every  effort  will  be 
made  for  the  fulfilment  of  this  contract."  It  then  contains  a  request 
to  the  defendants  to  deliver  the  coal,  "  on  tlie  above  terms  and  con- 
ditions," "at  your  wharves  at  Philadelphia"  —  the  defendants'  place 
of  business  —  "  to  be  shipped  to  Cambridgeport  "  —  the  plaintiffs'  place 
of  business.  The  quantity,  price,  and  terms  of  payment  are  then  stated. 
It  says,  "  we  will  send  our  own  vessels,"  an  agreement  to  receive; 
and  concludes  with  an  0[)tion  to  "the  purchaser"  to  refuse  all  but  the 
first  cargo  if  that  is  not  satisfactorv.  Tliat  there  is  a  contract,  a  seller, 
a  purchaser,  a  thing  sold,  a  price,  a  place  of  delivery,  and  terms  of 
payment,  all  sufficiently  appear.  It  is  true  that  part  of  the  paper  is  in 
form  an  order;  but  we  can  have  no  doubt  that,  taking  the  whole 
together,  it  shows  an  agreement  to  purchase.  As  was  said  b}'  Mans- 
field, C.  J.,  in  Allen  v.  Bennet,  3  Taunt.  169,  "  The  defendant's  counsel 
distinguishes  between  an  order  and  an  agreement  to  bu}^ ;  but  if  I  go 
to  a  shop  and  order  goods  do  not  I  agree  to  bu}'  them  ?  " 

The  onl}'  defect,  then,  is  the  want  of  the  signature  of  the  defend- 
ants or  that  of  their  authorized  agent.  If  this  had  been  the  onh'  paper 
executed,  it  would  deserve  serious  consideration,  whether,  if  shown  to 
have  been  made  as  a  memorandum  of  a  bargain  concluded  between 
the  parties,  delivered  as  such  b}'  the  plaintiffs,  and  accepted  as  such 
b}'  the  agent  of  the  defendants,  the  printed  name  of  the  defendants 
would  not  have  been  sufficient,  upon  the  authorities,  to  answer  the 
requirements  of  the  statute  as  a  signature  by  them.  Saunderson  v. 
Jackson,  3  Esp.  R.  180  ;  s.  c.  2  B.  »fe  P.  238.  But  we  do  not  put  the 
case  on  this  ground,  because  the  counterpart  of  the  contract,  delivered 
b}^  the  defendants  to  the  plaintiffs,  is  signed  by  them  through  their 
agent  Betteley.  As  a  separate  paper,  that  is  in  its  turn  defective,  by 
reason  of  not  containing  the  name  of  the  purchaser.  But  the  two 
papers  were  prepared  at  one  time,  and  delivered  simultaneously  as 
parts  of  the  same  transaction.  The  one  produced  b}'  the  plaintiffs  is 
signed  so  as  to  charge  the  defendants.  They  gave  to  the  defendants 
one  by  which  they  were  themselves  bound.  The  two  show  clearly, 
when  construed  bj-  their  own  language  as  applied  to  the  existing  cir- 
cumstances, which  party  was  the  seller,  and  which  the  purchaser. 
And  we  can  see  no  reason  upon  principle  or  authority  why  they 
should  not  have  the  same  effect,  as  if  both  the  signatures  were  to  the 
same  paper.  The  intrinsic  evidence  which  the}'  afford  that  they  refer 
to  the  same  transaction  is  ver}'  strong,  and  competent  for  the  con- 
sideration of  a  jury  ;  and,  in  the  absence  of  all  proof  that  a  precisely 
similar  contract  was  made  by  either  part}'  with  any  other  person,  would 
be  extremely  cogent. 

The  case  does  not  much  resemble  any  of  those  cited  for  the  defend- 
ants, in  which  the  doctrine  has  been  stated  that  when  the  memoran- 
dum is  made  out  from  several  papers  they  must  be  shown  upon  their 
face  to  have  a  mutual  relation  to  each  other;  and  that  this  relation 
cannot  be  established  by  extrinsic  evidence.-  This  is  the  rule  of  the 
text-books;  2  Kent  Com.   (6th  ed.)  511;  Browne  on  St.  of  Frauds, 


SECT.   II.]  LERNED   V.    WANNEMACHER.  647 

§  350 ;  and  its  general  correctness  is  well  settled.  Morton  v.  Dean, 
13  Met.  385.  Most  of  the  cases  to  which  we  have  been  referred  have 
been  those  of  sales  at  auction,  where  the  conditions  of  sale  were  not 
contained  in  or  annexed  to  the  memorandum  which  was  signed. 
Here  the  whole  terms  and  conditions  of  the  bargain  are  stated  alike  in 
the  two  copies  of  the  memorandum,  one  of  which  is  signed  bj  each 
party. 

There  are,  however,  two  specific  objections  which  deserve  attention. 
In  each  paper  the  statement  is  made,  "We,  will  send  our  own 
vessels  ;  "  and  as  they  are  signed,  one  by  the  plaintiffs  and  the  other 
by  the  defendants,  it  is  urged  that  the  meaning  of  the  word  "we" 
becomes  uncertain,  or  that  the  two  parts  of  the  memorandum  are 
made  contradictorv.  Besides  this,  one  part  of  the  contract  was 
altered  by  the  additional  agreement  written  by  the  defendants'  agent 
and  signed  b}^  the  plaintiffs,  "to  be  shipped  immediately  if  vessels 
are  not  sent ;  "  and  no  corresponding  alteration  has  been  signed  by 
the  defendants. 

The  first  difficult}'  seems  to  be  capable  of  a  satisfactory-  solution. 
The  printed  part  of  the  memorandum  clearl}'  contemplates  that  the 
shipment  of  the  coal  is  to  be  made  in  vessels  to  be  furnished  b}'  the 
vendors ;  although  they  assumed  no  responsibility  about  the  vessels 
except  reasonable  diligence  in  procuring  them.  The  insertion  of  the 
written  clause,  "  we  will  send  our  own  vessels,"  could  only  be  explained 
as  importing  a  change  in  this  respect.  In  the  part  of  the  contract 
signed  bj-  the  plaintiffs  "we"  would  mean  the  purchaser.  In  the 
other  part  the  phrase  follows  the  expression  "your  wharves,"  when 
speaking  of  the  wharves  of  the  defendants;  and  "we"  is  thus  used 
in  contradistinction  from  "you,"  the  vendors.  The  agent  of  the 
vendors  signs  the  paper ;  but  still,  if  not  with  perfect  grammatical 
correctness  of  expression,  it  is  sufficiently  obvious  that  in  using  the 
word   "we"  he  means  the  purchasers. 

The  additional  clause  written  upon  the  part  of  the  memorandum 
retained  by  the  defendants  presents  a  more  difficult  question,  though 
it  shows  ver}'  clearly  who  were  meant  by  "we"  in  the  part  of  the 
contract  just  considered.  But  it  is  obvious  that  it  was  not  meant  to 
impair  the  contract  which  had  been  made.  It  is  an  additional  stipula- 
tion to  take  effect  upon  a  contingency  which  has  not  liappened.  The 
evidence  showed  that  vessels  were  sent  by  the  plaintiffs.  And  if  the 
contingency  had  happened,  it  was  only  the  substitution  of  a  new  mode 
of  performance,  of  which  the  defendants  or  plaintiffs  might  have 
availed  themselves,  even  if  made  only  by  parol.  Cumraings  r.  Arnold, 
3  Met.  486;  Stearns  v.  Hall,  9  Cush.  31.  If  it  were  not  binding 
on  the  defendants,  because  no  memorandum  of  it  was  signed  by . 
them,  it  could  not  prevent  the  plaintiffs  from  enforcing  the  original 
contract.  It  is  obviousl}'  inadmissible  for  the  defendants  to  set  it  up 
as  changing  the  contract,  as  evidenced  by  the  completed  memoran- 
dum, and  at  the  same  time  to  den}-  its  obligation  for  want  of  their 
own  signature. 


648  HAYES    V.   JACKSON.  [CHAP.    IV. 

It  was  held  by  the  English  Court  of  Exchequer,  in  the  recent  case 
of  Bluck  V.  Gorapertz,  7  Welsh.  Hurlst.  &  Gord.  862,  that  where  a 
correction  was  made  upon  the  memorandum  of  a  contract  b}'  the 
defendant,  and  signed  onl}'  b}-  the  plaintiff,  the  original  signature  of 
the  defendant  was  a  sufficient  signing  under  the  statute.  That  decision 
would  be  applicable  to  the  present  case,  if  the  memorandum  had  been 
contained  in  one  paper,  or  if  the  indorsement  had  been  made  upon 
the  part  containing  the  signature  of  the  defendants'  agent.  It  is  more 
doubtful  whether  it  can  be  held  to  have  the  same  effect  where  the 
memorandum  is  contained  on  separate  papers,  and  we  do  not  put  the 
decision  on  that  ground. 

The  other  grounds  of  exception  taken  at  the  trial  have  not  been 
insisted  on  by  the  plaintiff's  counsel,  and  are  clearly  untenable. 

Exceptions  sustained.^ 


ALBERT  H.  HAYES  v.    CHARLES  E.  JACKSON. 

Supreme   Judicial    Court  of  Massachusetts,   December  8,    1892- 
September  6,   1893. 

[Reported  in  159  Massachusetts,  451.] 

Holmes,  J.  This  is  an  action  upon  a  contract  for  the  sale  of  land. 
The  judge  has  found  for  the  plaintiff,  and  the  only  question  is  whether 
the  memorandum  was  sufficient  to  satisfy  the  Statute  of  Frauds.  Pub. 
Sts.  c.  78,  sec.  1,  cl.  4.     The  memorandum  was  as  follows  : 

"Boston,  April  6,  1889. 
♦'  Received  of  Albert  H.  Hayes  one  hundred  dollars  on  account  of  sale  of 
estate  number  379  Columbus  Avenue,  for  the  sum  of  $14,140,  subject  to  a 
mortgage  of  8,000  dollars  on  4^  per  cent  interest,  and  I  agree  to  pay  the  140 
dollars  as  commission  to  James  C.  Tucker.  Rents  and  insurance  and  interest 
to  be  adjusted  to  date.     Title  to  be  passed  within  ten  days  from  date. 

"C.E.Jackson." 

On  the  face  of  it  this  discloses  no  defect.  But  as  the  defendant 
and  the  plaintiff  agreed  in  their  testimony  that  the  assumption  of  the 
mortgage  of  $8,000  was  part  of  the  consideration,  and  went  to  make 
up  the  sum  of  $14,140  mentioned,  we  assume  that  the  judge  found 
accordingly,  and  that  it  is  open  to  the  defendant  to  argue  that  the 
memorandum  does  not  agree  with  the  fact,  but  sets  forth  an  agreement 
which  was  never  made  to  pa}-  $14,140  for  the  equity  of  redemption. 
Whether  this  argument  is  sound  or  not  we  do  not  consider,  because  it 
seems  to  be  disposed  of  b3'sec.  2  of  our  statute,  that  the  consideration  of 
such  promise,  contract,  or  agreement  need  not  be  set  forth  or  expressed 
in  the  writing  signed  by  the  party  to  be  charged  therewith.  This 
section  was  inserted  in  the  Rev.  Sts.  c.  74,  sec.  2,  for  the  purpose  of 
adopting  and  confirming  the  judgment  of  this  court  in  Packard  v. 

1  White  V.  Breen,  106  Ala.  159  ;  Strouse  i\  Elting,  110  Ala.  132,  140,  ace. 


SECT.   II.]  HAYES   V.   JACKSON.  649 

Richardson,  17  Mass.  122,  declining  to  follow  Wain  v.  Warlters, 
5  East,  10.  That  case  concerned  a  promise  to  pa}'  the  debt  of  another, 
a  subject  on  which  there  has  been  much  controversy'  in  this  country 
(Browne  on  St.  Frauds,  sees.  390  et  seq.),  and  went  on  the  broad  ground 
that  it  was  not  necessar}'  to  state  the  consideration.  Marc}'  v.  MarcT, 
9  Allen,  8,  10  ;  Wetherbee  v.  Potter,  99  Mass.  354,  362.  The  rule 
laid  down  in  "Wain  v.  Warlters  was  altered  by  statute  in  England,  St. 
19  &  20 Vict.  c.  97,  sec.  3,  "because  it  was  found,  in  practice,  that  it 
led  to  many  unjust  and  mereh'  technical  defences  to  actions  upon 
guarantees."  2  Smith  Lead.  Cas.  (8th  ed.)  262,  263,  note  to  Wain  v. 
Warlters.  The  second  section  of  our  statute  goes  further,  and  applies 
to  all  the  contracts  mentioned  in  sec.  1,  no  doubt  for  similar  reasons 
among  others.  The  defendant  is  sufficiently  protected  if  all  that  he 
is  to  do  is  required  to  be  in  writing. 

Of  course  it  ma}'  be  said  that,  in  a  bilateral  contract  like  the 
present,  the  contemporaneous  payment  of  the  price  is  a  condition  of 
the  promise,  and  therefore  that  the  promise  cannot  be  set  forth  truly 
unless  the  consideration  is  stated.  But  the  language  of  the  section 
is  general,  and  should  be  read  as  no  doubt  it  was  meant.  The  only 
effect  is  that  a  promise  set  forth  as  absolute  may  be  subject  to  an 
implied  condition  of  performance  on  the  other  side.  When  such  an 
implied  condition  exists  it  will  be  construed  into  the  writing,  and 
knowledge  of  the  law  gives  notice  of  its  possible  existence.  In  some 
cases  it  has  been  held  unnecessary  to  state  the  consideration,  even 
when  there  is  no  provision  like  our  sec.  2,  although  the  consideration  was 
executory.  Thornburg  v.  Masten,  88  N.  C.  293  ;  Miller  v.  Irvine, 
1.  Dev.  &  Bat.  103;  Ellis  v.  Bray,  79  Mo.  227;  Yiolett  v.  Patton, 
5  Cranch,  142  ;  Camp  v.  Moreman,  84  Ky.  635.  In  Howe  v.  Walker, 
4  Gray,  318,  Thomas,  J.,  plainly  indicated  the  opinion  that  sec.  2  of  the 
statute  applies  in  all  cases,  pointing  out  that  this  does  not  mean  that 
when  the  parties  are  reversed  the  oral  agreement  will  be  sufficient  to 
sustain  an  action. 

The  only  case  at  all  opposed  to  our  conclusion,  so  far  as  we  know, 
is  Grace  v.  Denison,  114  Mass.  16.  That  was  a  bill  for  specific  per- 
formance ;  not  of  the  original  agreement,  but  of  the  written  document 
set  forth,  which  document  showed  that  a  mortgage  was  to  be  given  b}* 
the  purchaser,  but  did  not  state  what  part  of  the  purchase  money  was 
to  remain  secured  in  that  way.  Specific  performance  was  refused,  and 
in  the  judgment  a  brief  reference  was  made  to  the  Statute  of  Frauds, 
citing  Browne  on  St.  Frauds,  sees.  376,  381  ;  Fry  on  Spec.  Perf.  sees. 
221, 222,  and  note  7.  These  sections  state  in  general  terms  that  the  mem- 
orandum must  contain  the  price,  and  do  not  apply  in  this  State,  so  that 
the  inference  is  tiiat  sec.  2  of  our  statute  was  overlooked  by  the  court. 
It  was  not  mentioned  in  the  briefs  of  counsel,  or  in  the  judgment. 
The  decision  cannot  overrule  the  statute,  and  is  no  authority  for  a 
distinction  under  it.  So  far  as  it  went  on  the  doctrines  of  specific 
performance  only,  as  would  seem  from  the  reference  to  Fry  on  Spec. 


650  HATES   V.    JACKSON.  [CHAP.   IV. 

Perf.  sec.  222,  note  7,  stating  Baker  v.  Glass,  6  Munf.  212,  and  to 
Boston  &  Maine  Railroad  v.  Babcock,  3  Cash.  228,  232,  and  from  the 
fact  that  Mr.  Justice  Wells,  who  delivered  the  opinion  of  the  court 
in  Grace  v.  Denison,  also  wrote  the  decision  in  Wetherbee  v.  Potter, 
99  Mass.  254,  362,  it  has  no  bearing  on  the  case  at  bar. 

Exceptions  overruled.^ 

Field,  C.  J.  I  do  not  assent  to  the  opinion  of  the  court.  The 
agreement  or  receipt  signed  by  the  defendant  purports  to  set  out  the 
price,  and  apparently'  contains  all  the  terms  of  the  contract.  It  is 
argued  that  one  term  of  the  contract  was  that  "the  tenant  should  be 
allowed  to  remain,"  but  the  exceptions  recite  that  there  was  "conflict- 
ing evidence  upon  the  point  as  to  whether  or  not  it  was  a  part  of  the 
oral  agreement  that  the  tenant  should  be  allowed  to  remain."  The 
court,  trying  the  case  without  a  jury,  has  found  for  the  plaintiff,  and 
has  refused  to  rule  according  to  three  requests  made  by  the  defendant.* 
For  aught  that  appears,  the  court  may  have  found  that  it  was  not  a 
part  of  the  contract  that  the  tenant  should  be  allowed  to  remain.  But 
if  there  was  such  an  agreement,  it  was  an  agreement  to  be  performed 
by  the  plaintiff  after  he  received  the  conveyance,  and  seems  to  be 
collateral  to  tlie  contract  of  purchase  and  sale,  rather  than  a  part  of  it.^ 
The  real  difficulty  in  the  case  is,  that  the  writing  is  ambiguous  in  regard 
to  the  price,  and  one  question  in  the  case  might  have  been  whether 
oral  evidence  was  competent  to  remove  the  ambiguity,  but  no  such 
question  appears  to  have  been  raised.  The  evidence  of  the  usage  of 
real  estate  brokers  with  respect  to  the  amount  of  their  commissions, 
if  competent,  had  some  tendenc}'  to  show  that  the  writing  should  be 
construed  as  both  the  plaintiff  and  the  defendant  testified  the  contract 
really  was.  The  opinion  of  the  court  proceeds  solely  on  the  ground 
that  under  our  Statute  of  Frauds  the  contract  of  sale  or  a  memoran- 
dum of  the  sale  of  land  signed  by  the  vendor,  need  not  contain  the 
price,  or  any  of  the  other  terms  of  the  sale  ;  that  it  is  enough  if  the 
writing  shows  that  the  defendant  has  agreed  to  sell  certain  designated 
land  to  the  plaintiff  on  some  terms  unexpressed,  or  if  it  contains  an 
acknowledgment  that  such  an  agreement  has  been  made.  The  reasons 
given  for  this  opinion  are,  that  by  our  statute.  Pub.  Sts.  c.  78,  sec.  2, 
"The  consideration  of  such  promise,  contract,  or  agreement  need  not 
be  set  forth  or  expressed  in  the  writing  signed  by  the  party  to  be 
charged  therewith,  but  may  be  proved  by  any  legal  evidence."  This 
provision  was  introduced  in  the  Revised  Statutes  in  consequence  of  the 
decision  in  Packard  v.  Richardson,  17  Mass.  122;  Rev.  Sts.  c.  74, 
sec.  2.     In  the  report  of  the  commissioners  appointed  to  make   the 

»  White  I'.  Dahlquist  Mfg.  Co.,  179  Mass.  427,  ace. 

2  The  rulings  requested  were  as  follows  :  "  1.  Upon  all  the  evidence  in  this  case, 
the  plaintiff  is  not  entitled  to  maintain  this  acti(;n.  2.  The  memorandum  relied  upon 
in  this  case  is  not,  ui)on  all  the  evidence  in  this  case,  a  sufficient  memorandum  to  satisfy 
the  requirements  of  the  Statute  of  P'rauds.  3.  Upon  the  pleadings  and  all  the  evidence 
in  the  case,  there  is  no  sufficient  memorandum  to  satisfy  the  requirements  of  the  Statute 
of  Frauds,  aud  entitle  the  plaintiff  to  maintain  tliis  action." 


SECT.    II.]  HAYES   V.    JACKSON.  651 

revision,  they  say :  *'  Tliis  section  is  new  in  terms,  and  is  proposed 
for  the  purpose  of  adopting  and  confirming  the  judgment  of  the 
Supreme  Judicial  Court  upon  the  construction  of  the  statute  now  in 
force.  17  Mass.  Rep.  122."  The  decision  in  Packard  v.  Richardson 
•was  upon  a  written  promise  on  the  back  of  a  promissor}'  note  signed 
by  the  defendants,  as  follows :  "  We  acknowledge  ourselves  holden  as 
surety  for  the  payment  of  the  within  note.''  In  the  opinion  it  is  said  : 
"The  consideration  existing  was,  that  these  defendants  were  members 
of  the  compan}'  which  made  the  note  ;  and  that  a  suit,  which  had  been 
commenced,  was  stopped  by  the  plaintiff,  at  their  request.  But  this 
consideration  was  proved  by  parol,  and  the  writing  acknowledges  no 
consideration  whatever."  17  Mass.  128.  The  court  declined  to  follow 
the  decision  in  Wain  v.  Warlters,  5  East,  10.  See  Saunders  v.  Wake- 
field, 4  B.  &  Aid.  595.  All  these  cases  arose  upon  contracts  of 
guaranty  or  contracts  to  pay  the  debt  of  another,  and  the  consideration 
of  the  promise  was  executed.  When  these  cases  were  decided  it  was 
not  questioned  that  the  memorandum  of  a  contract  of  sale  must  contain 
the  terras  of  the  contract,  and  that  one  term  of  every  contract  of  sale 
is  the  price.  Many  of  the  United  States  have  passed  statutes  on  this 
subject  similar  to  ours ;  viz.  Illinois,  Indiana,  Kentuck}-,  Maine, 
Michigan,  Nebraska,  New  Jersey,  Virginia,  and  West  Virginia.  See 
Wood  on  St.  Frauds,  sec.  105,  Appendix,  892-922.  As  it  may  be 
suggested  that  decisions  in  England  and  in  States  where  no  similar 
statutes  exist  are  not  applicable,  I  shall  confine  my  citations  chiefl}', 
if  not  wholly,  to  our  own  decisions,  and  to  the  decisions  of  the  courts 
of  those  States  whose  statute  on  this  subject  is  similar  to  ours.  It  is 
substantially  conceded  that  Grace  v.  Denison,  114  Mass.  16,  is  directly 
opposed  to  the  opinion  of  the  court  in  the  present  case,  but  it  is  said 
that  the  second  section  of  our  Statute  of  Frauds  was  overlooked  by  the 
court.  It  was  a  bill  in  equity  against  a  vendor,  for  the  specific  per- 
formance of  an  agreement  to  convey  land.  The  case  arose  on  a 
demurrer  for  the  cause  "that  such  contract  as  the  plaintiff  alleges  to 
be  in  writing  and  signed  b}-  the  defendant  is  not  suflficient  to  enable 
a  court  of  equity  to  decree  specific  performance  thereof"  The  only 
ground  on  which  the  demurrer  was  sustained  was,  that  the  memoran- 
dum of  the  agreement  was  not  sufficient  to  satisf)'  tlie  Statute  of 
Frauds.  The  court  say:  "The  memorandum  of  agreement  indicates 
that  a  part  of  the  purcliase  money  was  agreed  to  be  secured  by  mortgage 
of  the  premises  to  be  conveyed.  But  it  does  not  disclose  nor  furnish 
any  means  for  the  court  to  ascertain  what  part  or  amount  is  to  remain 
upon  mortgage,  and  what  paid  in  cash  upon  delivery  of  tlie  deed.  .  .  . 
The  writing  being  incomplete  in  one  of  its  essential  terms,  and  tlie 
court  having  no  means  to  which  it  can  lawfully  resort  to  supply  the 
defect,  specific  performance  must  fail." 

Atwood  V.  Cobb,  16  Pick.  227,  was  assumpsit  by  the  vendee  against 
the  vendor  on  an  agreement  to  convey  land  signed  by  both  parties. 
The  agreement  was  "in  consideration  of  the  same  sum  whicli  I  paid 
him  [the  vendee]  for  the  same,  with  interest  from  the  time  I  purchased 


652  HAYES   V.   JACKSON.  [CHAP.   IV. 

the  same  till  I  paid  for  it  (supposed  about  six  months),  with  the 
expense  of  the  deed,  also  the  taxes  for  one  3'ear."  One  defence  was 
the  Statute  of  Frauds.  On  this  the  court  say  :  "  The  principal  uncer- 
taint}-  is  as  to  the  price  to  be  paid.  ...  As  the  amount  paid  for  an 
estate  is  usually  determined  In-  the  consideration  expressed  in  the  deed 
of  conveyance,  or  by  some  receipt  or  memorandum,  it  is  impossible  to 
pronounce  this  contract  void  under  the  statute,  because  it  does  not 
express  with  sufficient  certainty  the  price  to  be  paid  for  the  estate." 

Morton  v.  Dean,  13  Met.  385,  was  an  action  of  assumpsit  by  the 
vendor  of  land  against  the  vendee  ;  the  memorandum  was  signed  by  an 
auctioneer  who  was  the  agent  of  both  parties  ;  and  in  the  opinion  in 
that  case  it  was  said  :  "  But  the  memorandum  of  sale  must  refer  to  the 
conditions  of  sale,  or  the  case  will  be  within  the  statute.  Where  the 
connection  between  the  memorandum  and  the  conditions  is  to  be 
proved  entirel}'  by  parol  evidence,  it  is  within  the  mischief  intended 
to  be  prevented  by  the  statute.  The  terms  of  the  agreement,  which 
are  material,  must  be  stated  in  writing." 

In  Waterman  v.  Meigs,  4  Cush.  497,  an  action  to  recover  the  price 
of  merchandise  sold,  the  court  saj- :  "■  The  statute  [of  frauds]  requires 
'  some  note  or  memorandum  in  writing  of  the  bargain.'  This  letter 
alludes  to  planlc  bought,  and  to  be  delivered  ;  but  it  does  not  state  any 
one  of  the  elements  of  a  contract,  price,  quantity',  quality,  time,  place, 
or  an3'thing  to  inform  us  what  the  nature  of  the  contract  was,  and  is 
clearlj'  not  a  sufficient  memorandum."  Coddington  v.  Goddard,  16 
Gray,  436,  was  an  action  of  contract  to  recover  damages  for  not 
delivering  200,000  pounds  of  copper,  alleged  to  have  been  sold  bj'  the 
defendant  to  the  plaintiff.     The  same  doctrine  was  announced. 

Rile}'  V.  Farnsworth,  116  Mass.  223,  was  an  action  of  contract  by 
the  vendee  of  land  against  the  vendor.  The  memorandum  was  signed 
b}'  auctioneers  who  were  agents  of  both  parties.  It  described  the  land 
and  the  price,  and  it  acknowledged  the  receipt  of  a  deposit,  and  con- 
tained an  agreement  that  the  vendor  should  fulfil  the  conditions  of  sale. 
These  conditions  were  not  in  writing.  The  court  say:  "The  memo- 
randum in  writing  required  by  the  Statute  of  Frauds  must  contain  all 
the  essential  terms  of  the  contract,  so  that  the  court  can  ascertain 
the  rights  of  the  parties  from  the  writing  itself  without  resorting  to 
oral  testimony." 

Ashcroft  V.  Butterworth,  136  Mass.  511,  was  an  action  of  contract 
for  breach  of  a  written  agreement  to  sell  goods.  The  court  saj* :  "  In 
this  case  it  does  not  appear  that  the  price  is  made  certain  by  any 
writing  signed  by  tlie  defendants.  The  present  price  is  indeed  8^d. 
per  pound  ;  but  the  prices  generallv  are  to  be  the  same  as  those  paid 
by  the  Ashcroft  Manufacturing  Company,  and  it  does  not  appear  that 
those  prices  are  contained  in  any  writing  signed  bj-  the  defendants,  to 
which  this  offer  of  the  defendants  refers.  The  Statute  of  Frauds  has 
been  pleaded.  We  think  the  ruling  cannot  be  supported."  See  also 
Elliot  V.  Barrett,  144  Mass.  256  ;  Fogg  v.  Price,  145  Mass.  513. 


SECT.   II.]  HAYES   V.   JACKSON.  653 

In  Freeland  v.  Ritz,  154  Mass.  257,  the  court  sa}' :  "It  is  a  well- 
settled  rule  of  law,  that,  while  the  memorandum  must  express  the 
essential  elements  of  the  contract  with  reasonable  certaint}',  these  may 
be  gathered  either  from  the  terms  of  the  memorandum  itself,  or  from 
some  other  paper  or  papers  therein  referred  to."  The  agreement  con- 
cerned an  interest  in  land. 

In  White  v.  Bigelow,  154  Mass.  593,  the  court  sa}' :  "  To  satisfy  the 
statute  [of  frauds],  the  agreement  or  memorandum  must,  either  b}' 
its  own  terms  or  by  reference  to  some  other  writing,  express  with 
reasonable  certainty  all  the  conditions  and  essential  elements  of  the 
bargain."  The  agreement  was  alleged  to  have  been  made  upon  con- 
sideration of  marriage.     See  Callanan  v.  Chapin,  158  Mass.  113. 

I  do  not  know  whether  the  majorit}"  of  the  court  intend  to  make 
a  distinction  between  contracts  of  sale  described  in  the  first  section  of 
Pub.  Sts.  c.  78,  and  contracts  of  sale  described  in  the  fifth  section. 
While  some  of  the  cases  cited  above  are  suits  against  the  vendee  and 
some  suits  against  the  vendor,  it  seems  to  me  that  this  court  has 
alwa3's  held,  in  both  classes  of  cases,  that,  in  a  contract  to  convej' 
land  or  other  property*  executory  on  both  sides,  the  contract  or  memo- 
randum, although  it  need  be  signed  onh'  by  the  party  to  be  charged, 
must  contain  all  the  essential  terms  of  the  contract  or  bargain,  and 
that  the  price  agreed  to  be  paid  is  an  essential  term.  To  saj-  that  the 
court  in  the  decision  of  Grace  v.  Denison  overlooked  a  well-known 
provision  of  our  Statute  of  Frauds  concerning  consideration  is,  I  think, 
unwarranted. 

Some  of  the  decisions  in  other  States  whose  statutes  on  this  subject 
are  similar  to  ours  are  cited  below.  O'Donnell  ik  Leeman,  43  Maine, 
158 ;  Williams  v.  Robinson,  73  Maine,  186.  In  the  last  case  the 
court  say  :  "  But  while,  as  before  seen,  the  memorandum  need  not 
necessarily  mention  the  consideration,  that  being  proved  by  parol 
testimon}-,  nevertheless,  in  order  that  the  court  may  ascertain  the 
rights  of  the  parties  from  the  writing  itself,  without  resort  to  oral 
testimon}'  (Rile\'  r.  Farnsworth,  116  Mass.  223,  225,  226),  to  satisfy 
the  statute,  the  memorandum  must  contain  within  itself,  or  b}'  some 
reference  to  other  written  evidence,  the  names  of  the  vendor  and  vendee 
and  all  the  essential  terras  and  conditions  of  the  contract,  expressed 
with  such  reasonable  certainty  as  ma}-  be  understood  from  the  memo- 
randum and  other  written  evidence  referred  to  (if  an}-),  without  an}' 
aid  from  parol  testimony."  Gault  v.  Stormont,  51  Mich.  636  ;  Norton 
V.  Gale,  95  111.  533 ;  Farwell  v.  Lowther,  18  111.  252;  Nibert  v. 
Baghurst,  2  Dick.  201  ;  Schenck  r.  Spring  Lake  Beach  Improvement 
Co.,  2  Dick.  44.  See  Williams  v.  Morris,  95  U.  S.  444  ;  Reed  on  St. 
Frauds,  sees.  398  et  seq. ;  Browne  on  St.  Frauds,  sees.  376-385. 

In  Camp  v.  Moreman,  84  Ky.  635,  an  opinion  is  expressed  which 
accords  with  the  opinion  of  a  majority  of  the  court  in  the  present  case, 
although  perhaps  it  was  not  necessary  to  the  decision.  See  Freeland 
V.  Ritz,  154  Mass.  257  ;  Thoruburg  u.  Masten,  88  N.  C.  293  ;  and  Miller 


654  HAYES   V.    JACKSON.  [CHAP.   IV, 

V.  Irvine,  1  Dev.  &  Bat.  103,  were  decided  under  a  Statute  of  Frauds 
copied  from  the  English  statute  of  29  Car.  II.  c.  3,  which  contained  no 
provision  concerning  consideration  similar  to  ours.  Ellis  v.  Bra}',  79 
Mo.  227,  appears  to  have  been  decided  on  tiie  ground  that,  "  when  a 
written  memorandum  of  a  contract  does  not  purport  to  be  a  complete 
expression  of  the  entire  contract,  or  a  part  of  it  onl}'  is  reduced  to 
writing,  the  matter  thus  omitted  may  be  supplied  by  parol  evidence," 
—  a  doctrine  to  which  I  think  this  court  is  not  committed. 

When  the  whole  contract  or  promise  of  the  defendant  is  to  do  a 
certain  thing,  and  this  is  an  absolute  promise,  resting  upon  a  con- 
sideration which  has  been  executed,  there  is  some  reason  in  saying 
that  the  memorandum  signed  by  the  defendant  need  not  contain  the 
consideration  or  inducement  of  the  contract  or  promise.  But  in  a 
contract  executory  on  both  sides,  where  the  promises  are  mutual,  and 
each  is  the  consideration  of  the  other,  the  promises  are  conditional, 
and  one  party  agrees  to  perform  his  part  of  the  contract  onlj'  on 
condition  that  the  other  will  perform  his  part,  and  it  cannot  be  known 
what  the  promise  of  the  one  is  without  knowing  the  express  or  implied 
promise  of  the  other.  A  promise  to  conve}'  land  because  the  promisee 
has  actually  received  $1,000  is  not  the  same  as  a  promise  to  convey 
land  if  the  promisor  will  pa}'  $1,000  on  receiving  the  conveyance,  and 
a  promise  to  convey  land  for  Si, 000  to  be  paid  on  the  delivery  of  the 
deed  is  not  the  same  as  a  promise  to  convey  land  for  $10,000  to  be 
paid  on  the  delivery  of  the  deed.  The  conditions  on  which  the  vendor 
agrees  to  convey  are  often  many  and  complicated,  and  involve  the 
assumption  of  mortgages  and  the  performance  of  other  acts.  If  a  mere 
acknowledgment  in  writing  by  the  vendor  that  he  has  agreed  to  convey 
specific  land  to  the  vendee  on  terms  which  are  not  expressed  is  sufficient 
to  satisfy  the  Statute  of  Frauds,  then  it  is  open  to  the  vendee  to  prove 
by  oral  testimony  the  price  to  be  paid,  and  all  other  terms  of  the  con- 
tract to  be  performed  by  him,  and  the  statute  will  no  longer  prevent 
frauds  and  perjuries.  If  it  is  a  condition  of  the  promise  of  the  vendor 
that  it  is  not  to  be  performed  unless  at  the  time  of  the  performance 
the  vendee  pays  money  and  gives  or  assumes  mortgages,  the  condition 
qualifies  the  promise  and  is  a  part  of  it,  and  the  writing  should  contain 
all  that  is  essential  to  show  what  the  promise  or  contract  on  the  part 
of  the  vendor  in  fact  was.  The  decision  of  the  court  seems  to  me  in 
great  part  to  nullify  the  statute.  I  have  not  considered  whether  the 
judgment  of  the  court  may  not  be  sustained  on  some  other  ground 
than  that  stated  in  the  opinion.^ 

Mr.  Justice  Knowlton  concurs  in  this  opinion.^ 

^  It  is  generally  held  that  where  a  price  was  part  of  the  contract,  the  price  must 
appear  in  the  memorandum,  as  it  is  an  essential  element  of  the  contract.  Browne, 
sec.  376  6,  el.  seq. 

The  authorities  on  the  much  disputed  question  whether  the  consideration  of  the 
promise  must  appear  in  the  memorandum  are  discussed,  ibid.  sec.  386  et.  seq. 


SECT,   n.]  DOHERTY   V.   HILL.  655 

PATRICK   DOHERTY  v.   SARAH   A.    HILL. 
Supreme  Judicial  Court  of  Massachusetts,  March  16-Mat  9,  1887. 

[Reported  in  144  Massachusetts,  465.] 

Contract  for  breach  of  an  agreement  to  conve}-  to  the  plaintiff  cer- 
tain real  estate  in  Stoneham.     Answer,  the  Statute  of  Frauds. 

Trial  in  the  Superior  Court,  before  Blodgett,  J.,  who  allowed  a  bill 
of  exceptions,  in  substance  as  follows  : 

J.  H.  Green,  who  claimed  to  act  as  agent  for  the  defendant,  and 
who  executed  the  contract  declared  on,  testified,  for  the  plaintiff,  that 
the  estate  referred  to  in  said  contract  was  placed  in  his  hands  by  the 
defendant  in  May,  1884,  at  which  time  the  defendant  instructed  him  to 
sell  it  for  the  sum  of  $1,300  ;  that  on  ]\Iay  28,  1885,  in  reply  to  a  tele- 
gram from  him  inquiring  at  what  price  she  would  sell,  the  defendant 
sent  him  the  following  telegram,  signed  by  her:  "Eleven  hundred  and 
fifty  cash,  if  possible  try  for  more  ;  "  that  on  May  30,  1885,  the  defend- 
ant wrote  the  witness  a  letter,  which  contained  the  following:  "As  I 
telegraphed  3'ou,  I  will  sell  the  house  in  Lincolnville  for  $1,150;  will 
pay  last  ^-ear's  taxes  and  throw  in  insurance,  which  lasts  until  1887.  .  .  . 
I  will  make  terms  eas}-  for  the  party  purchasing  it,  say  three  or  four 
hundred  down  and  the  other  payments  satisfactorih-  secured  by  mort- 
gage ; "  and  that,  on  June  1,  1885,  and  after  receiving  this  letter,  the 
witness  received  from  the  plaintiff  $100  in  cash,  and  executed  and  gave 
to  the  plaintiff  the  following  paper,  being  the  same  declared  on  :  "  $100. 
Stoneham,  June  1st,  1885.  Rec'd  of  Patrick  Doherty  one  hundred 
dollars  to  bind  sale  of  estate  on  Congress  Street  owned  by  Sarah  A. 
Hill.  $350  cash.  $850  in  mortgage  at  6  per  cent.  J.  Horace  Green, 
agent  for  Sarah  A.  Hill." 

The  witness  further  testified,  that  he  had  never  paid  back  to  the 
plaintiff  the  $100  received  ;  and  that  he  told  the  plaintiff  he  would  pay 
interest  on  it,  and  that  the  plaintiff  could  have  the  money  whenever 
he  called  for  it.  The  plaintiff  offered  the  contract  of  sale  in  evidence, 
to  which  the  defendant  objected  ;  but  the  judge  admitted  it. 

There  was  also  evidence  tending  to  show  that  the  defendant,  by  her 
agent,  one  Kimball,  sold  said  estate,  on  June  11,  1885,  to  one  Aim}-, 
and  delivered  to  Almy  a  deed  thereof. 

The  defendant  testified,  and  upon  this  point  her  testimon}-  was  not 
controverted,  that  in  addition  to  the  estate  claimed  to  have  been  sold 
to  the  plaintiff,  and  which  consisted  of  a  lot  of  land  with  a  dwelling- 
house  on  it,  she  owned,  on  June  1,  1885,  several  lots  containing  two 
or  three  acres  in  all,  and  all  in  one  parcel,  of  otlier  land  on  said  Con- 
gress Street,  upon  the  other  side  of  the  street  and  nearly  opposite  to 
the  land  in  question  ;  and  that  this  parcel  of  land  had  no  buildings 
upon  it. 

The  plaintiff  offered  to  show  that  the  estate  named  in  the  agreement 


656  DOHERTY   V.    HILL.  [CHAP,    IV. 

was  the  lot  with  the  dwelling-house  on  it.  The  defendant  requested 
the  judge  to  rule  that  it  could  not  be  shown  by  extrinsic  evidence  to 
which  of  the  defendant's  estates  on  Congress  Street  the  written  memo- 
randum referred  ;  but  the  judge  declined  so  to  rule. 

The  plaintiff  offered  in  evidence  a  draft  of  a  deed  from  the  defendant 
to  him  of  the  estate  which  the  plaintiff  claimed  to  have  purchased, 
which  draft  was  made  by  Green  and  sent  by  him  to  the  defendant  to 
be  executed,  and  which  the  defendant  refused  to  execute.  To  the  ad- 
mission of  this  draft  in  evidence  the  defendant  objected  ;  but  the  judge 
admitted  it. 

The  defendant,  for  the  purpose  of  showing  the  value  of  the  estate  as 
affecting  the  question  of  damages,  offered  to  prove  that  said  estate  had 
been,  since  December,  1885,  in  the  hands  of  a  real  estate  agent  in 
Stoneham,  with  authorit}'  to  sell  it  for  $1,200,  but  no  purchaser  had 
been  found.     The  judge  excluded  the  evidence  offered. 

The  jury  returned  a  verdict  for  the  plaintiff  in  the  sum  of  $200  ;  and 
the  defendant  alleged  exceptions. 

A.   V.  Lynde^  for  the  defendant. 

E.  B.  Powers  S  J.  C.  Kennedy  (S.  L.  Powers  with  them),  for  the 
plaintiff. 

Holmes,  J.  The  memorandum  would  have  satisfied  the  Statute  of 
Frauds,  if  the  evidence  had  shown  that  there  was  only  one  "  estate  on 
Congress  Street  owned  b}'  Sarah  A.  Hill,"  in  Stoneham,  where  the 
memorandum  is  dated.^  Hurley  v.  Brown,  98  Mass.  545  ;  Scanlan  v. 
Geddes,  112  Mass.  15  ;  Mead  v.  Parker,  115  Mass.  413.  But  the  evi- 
dence shows  that  there  were  more  than  one.  The  plaintiff  argues  that 
this  is  an  ambiguity  introduced  by  parol,  and  that  therefore  it  may  be 
removed  b}'  parol.  98  Mass.  548.  But  the  statement  seems  to  us  mis- 
leading. The  words  show  on  their  face  that  they  may  be  applicable  to 
one  estate  only,  or  to  more  than  one.  If,  on  the  existing  facts,  they 
appl}'  only  to  one,  then  the  document  identifies  the  land  ;  if  not,  it  fails 
to  do  so.  In  ever}'  case,  the  words  used  must  be  translated  into  things 
and  facts  by  parol  evidence.  But  if,  when  so  translated,  they  do  not 
"  identify  the  estate  intended,  as  the  only  one  which  would  satisfy  the 
description,"  they  do  not  satisfy  the  statute.  See  Slater  v.  Smith,  117 
Mass.  96,  98  ;  Potter  v.  DufBeld,  L.  R.  18  Eq.  4,  7. 

1  "  A  written  offer  accepted  by  parol  is  a  sufficient  memorandum  to  satisfy  the 
Statute  of  Frauds."  Lydig  v.  Braman,  177  Mass.  212,  218.  Hoadly  v.  M'Laine,  10 
Bing.  482  ;  Heuss  v.  Picksley,  L.  R.  1  Ex.  342  ;  Stewart  v.  Eddowes,  L.  R.  9  C.  P.  311 ; 
Gradle  v.  Warner,  140  111.  123 ;  Howe  v.  Watson,  179  Mass.  30;  Austrian  v.  Springer, 
94  Mich.  343;  Kessler  v.  Smith,  42  Minn.  494;  Waul  v.  Kirkman,  27  Miss.  823; 
Wilkinson  v.  Taylor  Mfg.  Co.,  67  Miss.  231  ;  Lash  v.  Parlin,  78  Mo.  391 ;  Argus  Co. 
V.  Albany,  55  N.  Y.  495 ;  Mason  v.  Decker,  72  N.  Y.  595  ;  Raubitchek  v.  Blank,  80 
N.  Y.  478;  Himrod  Co.  v.  Cleveland  Co.,  22  Ohio  St.  451  ;  Thayer  v.  Luce,  22  Ohio 
St.  62  ;  Lee  v.  Cherry,  85  Tenn.  707;  Lowber  v.  Connit,  36  Wis.  176;  Hawkinson  v. 
Harmon,  69  Wis.  551,  ace.  Comj)are  Banks  v.  Harris  Mfg.  Co.,  20  Fed.  Rep.  667, 
Haw  v.  American  Wire  Nail  Co.,  89  la.  745 ;  American  Oak  Leather  Co.  r.  Porter, 
94  la.  117;  Atlee  v.  Bartholomew,  69  Wis.  43.  _ 


SECT,   n.]  DOHERTY  V.   HILL.  657 

The  letter  from  the  defendant  to  her  agent  did  identify  the  estate, 
we  will  assume,  as  the  only  one  owned  by  her  which  had  a  house  upon 
it.  But,  of  course,  this  letter  was  not  of  itself  a  sufficient  memorandum. 
It  has  been  held  that  an  ofifer  in  writing,  afterwards  accepted  orally, 
satisfies  the  statute.  Sanborn  v.  Flagler,  9  Allen,  474  ;  Browne,  St. 
of  Frauds  (4th  ed.),  §  345  a.  But  this  letter  was  only  an  authority  to 
offer.  It  does  not  appear  to  have  been  exhibited  to  the  plaintiff,  as  in 
Hastings  v.  Weber,  142  Mass.  232,  and  plainl}-  was  not  intended  to  be. 
"VVe  express  no  opinion  whether  it  would  have  been  sufficient,  if  it  had 
been  shown  and  its  terms  had  been  accepted. 

Again,  the  letter  cannot  be  used  to  help  out  the  memorandum,  on 
the  ground  that  the  latter  impliedly  incorporates  it.  The  memorandum, 
it  is  true,  purports  to  be  signed  by  an  agent,  and  therefore  maj'  be  said 
to  refer  by  implication  to  some  previous  authority.  But  this  implied 
reference  is  at  most  rather  an  implied  assertion  that  authorit}'  exists 
(which  may  be  oral),  than  a  reference  to  documents  containing  the 
authority'.  Jefts  v.  York,  10  Cush.  392,  395  ;  Boston  &  Albany-  Rail- 
road V.  Richardson,  135  Mass.  473,  475.  It  would  hard!}-  be  argued  as 
a  defence  to  an  action  of  deceit,  against  a  person  who  had  assumed  to 
act  as  agent  without  authorit}-,  that  the  memorandum  signed  b}'  him 
impliedly  referred  to  and  incorporated  the  written  communications  from 
his  alleged  principal,  and  that  therefore  the  plaintiff  must  be  taken  to 
have  known  them,  and  that  the}'  did  not  confer  the  authority  assumed. 
In  this  case,  the  agent  had  authorit}'  by  telegram  before  he  received  the 
letter ;  the  argument,  therefore,  would  have  to  go  tlie  length  of  saying 
that  all  documents  of  authority'  were  tacitlv  incorporated. 

In  Hurley  v.  Brown,  xihi  supra,  it  was  held  that  a  memorandum  of  an 
agreement  to  sell  "a"  house  on  a  certain  street  should  be  presumed  to 
mean  a  house  belonging  at  the  time  to  the  contractor.  It  may  be 
asked  whether  there  is  not  at  least  as  strong  a  presumption  that  a 
memorandum  signed  by  an  agent  refers  to  property  which  he  is  author- 
ized to  sell.  But  unless  the  document  of  authority  is  specifically  incor- 
porated, then  the  memorandum  is  only  of  a  sale  of  a  house  which  the 
agent  is  authorized  in  some  waj'  to  sell,  and,  so  far  as  the  memorandum 
goes,  his  authority  may  as  well  be  oral  as  written.  The  diflTerence  may 
be  one  of  degree,  but  the  distinction  is  none  the  less  plain  between  an 
identification  b}''  extrinsic  proof  of  the  usually  manifest,  external,  and 
continuing  fact  that  the  party  owned  but  one  house  on  a  certain  street, 
and  that  by  similar  proof  of  possibly  oral  communications  between  prin- 
cipal and  agent,  which  is  precisely  the  kind  of  identification  the  statute 
seeks  to  avoid.  See  "Whelan  v.  Sullivan,  102  Mass.  204,  206  ;  Rossiter 
V.  Miller,  3  App.  Cas.  1124,  1141  ;  Potter  v.  Duffield,  uhi  sxqyra ;  Jarrett 
V.  Hunter,  34  Ch.  D.  182. 

The  same  considerations  would  apply  to  an  attempt  to  help  out  the 
memorandum  by  evidence  that  the  estate  intended  was  the  only  one 
which  the  plaintiflT  knew  of  as  belonging  to  the  defendant. 

The  remaining  exceptions  become  immaterial.  The  draft  of  a  deed 
VOL.  I.  —  42 


658  DOHERTY   V.   HILL.  [CHAP.   IV, 

of  the  premises  was  admissible,  in  connection  with  proof  that  it  was 
offered  to  the  defendant  for  execution,  to  show  a  breach,  but  not  to  aid 
the  memorandum.  The  deed  was  not  referred  to  by  the  previously 
executed  memorandum,  nor  were  its  contents  governed  by  the  signa- 
ture of  the  latter. 

Evidence  that  a  real  estate  agent  had  not  sold  the  land  for  $1,200  was 
not  evidence  of  its  value. 

Exceptions  sustained.'^ 

1  In  Eyder  v.  Loomis,  161  Mass.  161,  162,  Morton,  J.,  said: 

"  The  defendant  objects  that  the  description  of  the  property  in  the  memorandum 
on  which  the  plaintiff  relies  is  insutHciently  within  the  Statute  of  Frauds.  What  was 
sold  is  described  as  '  my  right  in  Beujaniiu  Ryder's  (my  father)  estaie.'  The  report 
finds  that  the  only  real  estate  which  Benjamin  Ryder  owned  was  his  homestead 
in  Yarmouth,  Mass.,  and  that  he  devised  it  in  equal  shares  to  the  plaintiff  and  the  de- 
fendant Mary.  It  is  well  settled  that  parol  evidence  may  be  introduced  for  the  pur- 
pose of  showing  the  positions  of  the  parties  and  their  relation  to  any  property  that  will 
satisfy  the  description  contained  in  the  memorandum.  Farwell  v.  Mather,  10  Allen, 
322;  Hurley  V.  Brown,  98  Mass.  545;  Mead  v.  Parker,  115  Mass.  413;  Doherty  v. 
Hill,  144  Mass.  465,468;  Murray  v.  Mayo,  157  Mass.  248.  Viewed  in  the  light  of 
surrounding  circumstances,  the  description  is  as  if  it  read  '  my  undivided  half  in  the 
homestead  belonging  to  the  estate  of  Benjamin  Ryder  in  Yarmouth,  Mass.'  Such  a 
description  clearly  would  be  sufficient.  Atwood  v.  Cobb,  16  Pick.  227  ;  Nichols  r. 
Johnson,  10  Conn.  192.     Cases  s^y^ru." 

In  Mead  v.  Parker,  115  Mass.  413,  it  was  held  that  the  words  "  a  house  on  Church 
Street"  sufficiently  described  the  property.  See  also  Hurley  v.  Brown,  98  Mass.  545, 
and  Slater  v.  Smith,  117  Mass.  96.  In  Hodges  v.  Rowing,  58  Conn.  12,  "his  place  in 
Stratford,  containing  about  15  acres"  was  held  a  sufficient  description,  but  in  Andrew 
V.  Babcock,  63  Conn.  109,  "a  tract  of  land  with  all  the  buildings  thereon,  adjoining 
the  New  Haven  and  Derby  R.  R.,  in  the  town  of  Orange,  and  containing  some  twenty 
acres  more  or  less,"  was  said  to  be  insufficient,  though  apparently  the  seller  owned  no 
other  property  answering  the  description.  In  Fortesque  v.  Crawford,  105  N.  C.  29, 
"  his  laud  "  was  held  "  too  vague  and  indefinite  to  admit  parol  evidence  to  locate  the 
land."  See  also  Lowe  ;;.  Harris,  112  N.  C.  472.  In  Falls  of  Neuse  Manufacturing  Co. 
V.  Hendricks,  106  N.  C.  485,  "his  land  where  he  now  lives"  was  held  sufficient  if  sus- 
ceptible of  identification  by  extrinsic  evidence.  In  Jones  v.  Tye,  93  Ky.  390,  "land 
adjoining  the  McKebly  land  "  was  held  insuificient,  the  seller  having  two  parcels  an- 
swering that  description.  In  Holmes  v.  Evans,  48  Miss.  247,  "a  piece  of  property  on 
the  corner  of  Main  and  Pearl  Streets,  city  of  Natchez,  county  of  Adams,  State  of  Missis- 
sippi," was  held  insufficient  because  there  was  no  reference  in  the  memorandum  itself 
to  anything  extrinsic  that  would  define  which  corner  was  intended.  In  Mellon  v. 
Davidson,  123  Pa.  298,  "a  lot  of  ground  fronting  about  190  feet  on  P.  R.  R.  in  the 
21st  ward  Pittsburgh,  Pa.,"  was  held  insufficient,  though  the  seller  owned  but  one  piece 
of  land  in  the  ward  named. 

See  also  Ogilvie  v.  Foljambe,  3  Mer.  53;  Bleakley  r.  Smith,  11  Sim.  150;  Newell 
V.  Radford,  L.  R.  3  C.  P.  52  ;  Shardlow  r.  Cotterell,  20  Ch.  D.  90 ;  Rineer  v.  Collins, 
156  Pa.  342;  Cunningham  v.  Neeld,  198  Pa.  41,  45  ;  Seymour  v.  Cushway,  100  Wis. 
580 ;  and  an  article  by  F.  Vaughan  Hawkins  in  2  Juridical  Society  Papers,  298,  espe- 
cially 326  et  Seq. 


SECT.    II.]  NOBLE    V.    WARD.  659 


NOBLE   V.   WARD    and   Others. 
In  the  Exchequer,  January  12,  1866. 

[Reported  in  Laiu  Reports,  1  Exchequer,  117.] 

In  the  Exchequer  Chamber,  February  8,  1867. 

[Reported  in  Law  Reports,  2  Exchequer,  135.] 

Action  for  non-acceptance  of  goods.  The  first  count  of  the  declara- 
tion stated  that  it  was  agreed  between  the  plaintiff  and  the  defendants 
that  the  plaintiff  should  sell  and  deliver  to  them,  and  that  they  should 
accept  from  him,  within  a  certain  agreed  period,  which  had  elapsed 
before  action,  a  quantit}'  of  cloth  at  certain  prices  therefore  to  be  paid 
b}-  the  defendants,  and  then  agreed  upon  between  the  plaintiff  and  the 
defendants;  yet  the  defendants  refused  to  accept  or  pay  for  the  cloth, 
although  all  things  were  done,  «&c.,  whereby  the  plaintiff  lost  the 
difference  between  the  agreed  price  and  the  lower  price  to  which  the 
goods  sold  fell.  The  second  count  was  for  mone}'  payable  for  goods 
bargained  and  sold,  goods  sold  and  delivered,  and  for  money  due  on 
accounts  stated. 

The  defendants,  as  to  the  first  count,  pleaded  (1)  Non  assumpsit. 
(2)  Traverse  that  the  plaintiff  was  read}'  and  willing  to  deliver  the 
cloth  within  the  agreed  period.  (3)  That  it  was  one  of  the  terms 
of  the  alleged  agreement,  that  the  cloth  agreed  to  be  sold  and 
delivered  should  be  of  the  same  material,  and  as  well  made,  as  a 
sample  piece  then  shown  and  delivered  by  the  plaintiff  to  the  defend- 
ants ;  and  that  the  plaintiff  was  not  ready  and  willing  to  deliver  cloth 
of  the  same  material  and  as  well  made  as  the  sample  piece.  (4)  Re- 
scission of  the  alleged  agreement.  (5)  To  the  second  count,  never 
indebted.     Issues  thereon. 

The  cause  was  tried  before  Bramwell,  B.,  at  the  Manchester  Sum- 
mer Assizes,  1865,  when  the  following  facts  were  proved  :  — 

The  plaintiff  is  a  manufacturer,  and  the  defendants  are  merchants, 
at  Manchester.  On  the  12th  August,  1864,  the  defendants  gave  to 
the  plaintiff's  agent  an  order  for  500  pieces  of  32-inch  grey  cloth  at 
38s.  9(7.,  and  1000  pieces  of  35-inch  grej'  cloth  at  42.s.  1^(7.,  the  deliv- 
eries to  commence  in  three  weeks,  and  to  be  completed  in  eight  to 
nine  weeks.  On  the  18th  of  the  same  month  a  second  order  ^  was 
given  by  the  defendants  for  500  pieces  of  32-inch  grej-  cloth  at  39s. 
and  100  pieces  of  35-inch  gre}'  cloth  at  42.s.  Sc/.,  to  be  delivered  "  to 
follow  on  after  order  given  12th  instant,  and  complete  in  ten  to  twelve 
weeks."  The  plaintiff,  on  the  10th  and  19th  September  made  a  first 
and  second  delivery  on  account  of  the  first  order.  Considerable  dis- 
cussion ensued,  both  as  to  the  time  of  deliveiy  and  as  to  the  quality 
of  the  goods  delivei'ed ;  and  eventuall}',  on  the  27th  September,  the 
^  There  was  a  memorandam  in  writing,      s.  c.  14  Weekly  Rep.  397. 


660  NOBLE   V.    WARD.  [CHAP,    IV. 

plaintiff  bad  an  interview  with  the  defendants,  at  which  it  was  agreed 
that  the  goods  deHvered  under  tlie  first  order  should  he  taken  back, 
that  that  order  should  be  cancelled,  and  that  the  time  for  delivering  the 
goods  under  the  second  order  should  be  extended  for  a  fortnight. 
Goods  were  tendered  to  the  defendants  b}'  the  plaintiff  in  time  either 
for  the  fulfilment  of  the  agreement  of  the  18th  August  or  of  that 
of  the  27th  September ;  but  the  defendants  refused  to  accept  them 
on  various  grounds  —  amongst  others,  on  the  ground  that  they  were 
not  of  the  stipulated  qualit}'.  The  plaintiff  thereupon  brought  this 
action.  The  declaration  was  framed  so  as  to  fit  either  the  agreement 
of  the  18th  August  or  that  of  the  27th  September.  The  learned 
judge  directed  a  nonsuit  to  be  entered,  being  of  opinion  that  the  con- 
tract of  the  18th  August  was  no  longer  in  existence,  the  parol  agree- 
ment of  the  27th  September  having  rescinded  it;  and  that  the  latter 
agreement  could  not  be  resorted  to,  not  being  in  writing,  in  accordance 
with  sec.  17  of  the  Statute  of  Frauds  (29  Car.  II.  c.  3).  Tiiat  section 
provides  that  "  no  contract  for  the  sale  of  any  goods,  wares,  or  mer- 
chandises for  the  price  of  10/.  sterling  or  upwards  shall  be  allowed  to 
be  good  .  .  .  unless  some  memorandum  or  note  in  writing  of  the  said 
bargain  lie  made  and  signed  b}'  the  parties  to  be  charged  with  such 
contract,  or  their  agents  thereunto  lawfully  authorized." 

A  rule  idsi  was  obtained  in  Michaelmas  term,  1865,  for  a  new  trial, 
on  the  ground  that  the  plaintiff  was  entitled  to  recover  on  the  contract, 
of  the  18th  August. 

Ilollcer  and  Baylis  showed  cause : 

Mellish,  Q.  C,  in  support  of  the  rule. 

Jan.  12.  The  judgment  of  the  Court  (Pollock,  C.B.,  Bramwell, 
Channell,  and  Pigott,  B.B.)  was  delivered  by 

Bramwell,  B.^  This  case  was  tried  before  me  at  Manchester,  and  the 
plaintiff  was  nonsuited.  The  case  comes  before  us  on  a  rule  to  set  aside 
that  nonsuit.  I  think  it  was  wrong,  at  least  on  the  ground  on  which  it 
proceeded.  The  action  was  for  not  accepting  goods  on  a  sale  b}'  the  plain- 
tiff to  the  defendants.  The  defendants  pleaded,  among  other  things,  that 
the  contract  had  been  rescinded,  and  that  the  plaintiffs  were  not  read3' 
and  willing  to  deliver.  The  facts  were,  that  a  contract  for  the  sale  and 
delivery  of  goods  from  the  plaintiff  to  the  defendants,  at  a  future  day. 
was  entered  into  on  the  12tli  of  August,  which  ma}'  be  called  con- 
tract A  ;  that  another  contract  for  sale  and  delivery  by  the  [daiiitiff  to 
the  defendants  also  at  a  future  da}'  was  entered  into  on  the  18th  of 
August,  say  contract  B  ;  that  before  any  of  the  days  of  delivery  had 
arrived  the  plaintiff  and  defendants  agreed,  verbally,  to  rescind,  or  do 
away  with,  contract  A,  and  to  extend  for  a  fortnight  the  time  for  the 
performance  of  contract  B  ;  that  is  to  say,  the  plaintiff  had  a  fortnight 
longer  to  deliver,  and  the  defendants  a  fortnight  longer  to  take  and 
pay  for  those  goods.  This,  on  principle  and  authority,  was  a  third 
contract,  call  it  C.  It  was  a  contract  in  which  all  that  was  to  be  done 
^  This  judgment  was  read  by  Channell,  B. 


SECT,    n.]  NOBLE   V.    WAED.  661 

and  permitted  on  one  side  was  the  consideration  for  all  that  was  to  be 
done  and  permitted  on  the  other.  See  per  Parke,  B.,  in  Marshall  v. 
Lynn,  6  M,  &  W.  117.  It  remains  to  add  that  the  declaration 
would  fit  either  contract  B  or  contract  C,  and  that  goods  were  ten- 
dered b}'  the  plaintiff  to  the  defendants  in  time  for  either  of  those  con- 
tracts. My  notes,  and  my  recollection  of  m\'  ruling,  are  that  contract 
B  was  rescinded,  and  contract  C  not  enforceable,  not  being  in  writing. 
I  think  that  was  wrong.  Either  contract  C  was  within  the  Statute  of 
Frauds,  or  not.  If  not,  there  was  no  need  for  a  writing  ;  if  yes,  it  was 
because  it  was  a  contract  for  the  sale  of  goods,  and  so  within  the  seven- 
teenth section  of  the  statute.  That  says  that  no  contract  for  the  sale 
of  goods  for  the  price  of  10/.  or  upwards  shall  be  allowed  to  be  good, 
except  there  is  an  acceptance,  payment,  or  writing.  The  expression 
"■  allowed  to  be  good  "  is  not  a  very  happy  one,  but  whatever  its  mean- 
ing may  be,  it  includes  this  at  least,  that  it  shall  not  be  held  valid  or 
enforced.  But  this  is  what  the  defendant  was  attempting  to  do.  He 
was  setting  up  this  contract  C  as  a  valid  contract.  He  was  asking 
that  it  should  be  allowed  to  be  good  to  rescind  contract  B. 

It  is  attempted  to  say  that  what  took  place  when  contract  C  was  made 
was  twofold.  First,  that  the  old  contracts  were  given  up  ;  secondly',  a 
new  one  was  made.  But  that  is  not  so.  What  was  done  was  all  done 
at  once — was  all  one  transaction,  one  bargain;  and  had  the  plaintiff 
asked  for  a  waiting  at  the  time,  and  the  defendants  refused  it,  it  would 
all  have  been  undone,  and  the  parties  remitted  to  their  original 
contracts. 

I  think,  therefore,  that  on  principle  it  was  wrong  to  hold  that  the 
old  contract  was  gone.  Moore  v.  Campbell,  10  Ex.  323,  23  L.  J. 
(Ex.)  310,  is  an  authorit}-  to  the  same  effect.  It  is  true  that  case 
may  be  distinguished  on  the  facts,  namely-,  that  there  what  was  to  be 
done  under  the  new  arrangement  in  lieu  of  the  old  was  to  be  done  at 
the  same  time,  so  that  it  might  well  be  the  parties  meant,  not  that  the 
new  thing  should  be  done,  but  if  done  it  should  be  in  lieu  of  the  old. 
Such  an  argument  could  not  be  used  in  this  case.  But  it  was  not  the 
ground  of  the  judgment  there,  which  is  that  the  new  agreement  was 
void.  The  cases  of  Goss  v.  Lord  Nugent,  5  B.  &  Ad.  58  ;  Stead  v. 
Davvber,  10  Ad.  &  E.  57,  and  others,  onl}-  show  that  the  new  contract 
C  cannot  be  enforced,  not  that  the  old  contract  B  is  gone.  I  think  it 
was  not.  Inconvenience  and  absurdit}'  ma\'  arise  from  this.  For 
instance,  if  the  defendants  signed  the  new  contract,  and  not  the  plain- 
tiff, the  plaintiff  would  be  bound  to  the  old  and  the  defendants  to  the 
new.  Or,  if  in  the  course  of  the  cause  a  writing  turned  up  signed  by 
the  plaintiff,  then  the^-  could  first  rel}'  on  the  old,  and  afterwards  on 
the  nevv  contract.  But  this  is  no  more  than  ma}'  happen  in  any  case 
within  the  17th  section,  where  there  has  been  one  contract  onl}'. 

But  then,  it  was  said  before  us  that  the  plaintiff  was  now  read}'  and 
willing  to  deliver  under  contract  B.  Probably  not,  and  he  supposed 
contract  C  was  in  force.     In  answer  to   this  the  plaintiff  contended 


662  NOBLE   V.   WARD.  [CHAP.    IV. 

before  us  that  this  point  was  not  made  at  the  trial,  to  which  the  defend- 
ants replied,  — neither  was  the  point  that  the  old  contract  was  in  force. 
My  recollection  is  so,  — that  the  case  was  opened  and  maintained  as  on 
the  new  contract,  —  but  I  agree  with  Mr.  Mellish,  that  a  nonsuit  ought 
to  be  maintained  on  a  point  not  taken 'at  the  trial  only  when  it  is 
beyond  all  doubt.  I  cannot  sa}'  this  is.  Consequent!}',  I  think  the 
rule  should  be  absolute,  but  under  the  circumstances  the  costs  of  both 
parties  of  the  first  trial  ought  to  abide  the  event  of  the  second. 

Channbll,  B.  The  case,  in  mj-  brother  Buamwell's  opinion,  turn- 
ing on  what  was  his  own  impression,  he  was  desirous  that  this  judg- 
ment should  be  read  as  his  own  judgment.  But  I  am  authorized  by 
the  Lord  Chief  Baron,  and  by  my  brother  Pigott,  to  say  that,  although 
I  have  read  it  as  the  judgment  of  my  brother  Bkamwell,  it  is  a  judg- 
ment in  which  we  all  agree. 

Hule  absolute. 

The  defendants  appealed  to  the  Exchequer  Chamber. 

WiLLES,  J.  This  is  an  appeal  from  the  judgment  of  the  Court  of 
Exchequer  making  absolute  a  rule  to  set  aside  a  nonsuit,  and  for 
a  new  trial.  The  action  was  brought  for  non-acceptance  of  goods 
pursuant  to  a  contract  dated  the  18th  of  August,  by  which  the 
goods  were  to  be  delivered  in  a  certain  time.  The  defendants  pleaded 
that  the  contract  was  rescinded  by  mutual  consent.  At  tlie  trial,  they 
established  tliat,  on  the  27th  of  September,  before  any  breach  of  that 
contract,  it  was  agreed  between  the  plaintiff  and  the  defendants  that  a 
previous  contract  of  the  12th  of  August  should  be  rescinded  (as  to 
which  no  question  is  made),  that  the  time  for  delivering  under  the 
contract  of  the  18th  should  be  extended  for  a  fortnight ;  and  other 
provisions  were  made  as  to  taking  back  certain  goods,  which  we  need 
not  further  notice.  The  contract  of  the  27th  of  September,  however, 
was  invalid,  for  want  of  compliance  with  the  formalities  required  by 
sec.  17  of  the  Statute  of  Frauds.  The  defendants  contended  that  the 
effect  of  the  contract  to  extend  the  time  for  delivery  was  to  rescind  the 
contract  of  the  18th  of  August ;  and  if  the  former  contract  had  been 
in  a  legal  form,  so  as  to  be  binding  on  the  parties,  that  contention 
might  have  been  successful,  so  far  as  a  change  in  the  mode  of  carrying 
out  a  contract  can  be  said  to  be  a  rescission  of  it ;  but  the  defendants 
maintained  that  the  effect  was  the  same,  although  the  contract  was 
invalid.  In  setting  aside  the  nonsuit  directed  b}'  the  learned  judge 
who  tried  the  cause,  the  Court  of  Exchequer  dissented  from  that  view, 
and  held  that  what  took  place  on  the  27th  must  be  taken  as  an  entirety, 
that  the  agreement  then  made  could  not  be  looked  on  as  valid,  and 
that  no  rescission  could  be  effected  by  an  invalid  contract.  And  we 
are  of  opinion  that  the  Court  of  Exchequer  was  right.  Mr.  Holicer  has 
contended,  that  though  the  contract  of  the  27th  of  September  cannot 
be  looked  on  as  a  valid  contract  in  the  way  intended  b}-  the  parties, 
yet   since,    if  valid,  it  would  have  had  the  effect   of  rescinding  the 


SECT,   n.]  NOBLE   V.   WARD.  663 

contract  of  the  18th,  and  since  the  parties  might  have  entered  into  a 
raere  verbal  contract  to  rescind  simpliciter,  we  are  to  say  that  what 
would  have  resulted  if  the  contract  had  been  valid,  will  take  place 
though  the  contract  is  void ;  or,  in  other  words,  that  the  transaction 
will  have  the  effect  which,  had  it  been  valid,  the  parties  would  have 
intended,  though  without  expressing  it,  although  it  cannot  operate  as 
they  intended  and  expressed.  But  it  would  be  at  least  a  question  for 
the  jury,  whether  the  parties  did  intend  to  rescind  —  whether  the 
transaction  was  one  which  could  not  otherwise  operate  according  to 
their  intention  ;  and  a  material  fact  on  that  point  is,  that,  while  they 
expressl}'  rescinded  the  contract  of  the  12th  of  August,  they  simply 
made  a  contract  as  to  the  carrying  into  effect  that  of  the  18th,  though 
in  a  mode  different  from  what  was  at  first  contemplated.  It  is  quite 
in  accordance  with  the  cases  of  Doe  d.  Egremont  v.  Courtena}*, 
11  Q.  B.  702,  and  Doe  d.  Biddulph  v.  Poole,  11  Q.  B.  713,  overruling 
the  previous  decision  of  Doe  d.  Egremont  v.  Forward,  3  Q.  B.  627  ; 
see  11  Q.  B.  723,  to  hold  that,  where  parties  enter  into  a  contract 
which  would  have  the  effect  of  rescinding  a  previous  one,  but  which 
cannot  operate  according  to  their  intention,  the  new  contract  shall  not 
operate  to  affect  the  previousl}'  existing  rights.  This  is  good  sense 
and  sound  I'easoning,  on  which  a  jur}'  might  at  least  hold  that  there 
was  no  such  intention.  And  if  direct  authority  were  wanted  to  sustain 
this  conclusion,  it  is  supplied  by  Moore  v.  Campbell,  10  Ex.  323, 
23  L.  J.  (Ex.)  310,  \vhere,  upon  a  plea  of  rescission,  the  ver}'  point 
was  taken  b^'  Sir  Hugh  Hill,  who  would  no  doubt  have  made  it  good 
had  it  been  capable  of  being  established.  With  reference  to  his 
argument  that  the  contract  was  rescinded,  Parke,  B.,  said,  10  Ex.  at 
p.  332  :  "  We  do  not  think  that  this  plea  was  proved  by  the  evidence. 
The  parties  never  meant  to  rescind  the  old  agreement  a1)Solutely, 
which  the  plea,  we  think,  imports.  If  a  new  valid  agreement  sub- 
stituted for  the  old  one  before  breach  would  have  supported  the  plea, 
we  need  not  inquire,  for  the  agreement  was  void,  their  being  neither 
note  in  writing,  nor  part  payment,  nor  delivery,  nor  acceptance,  of 
part  or  all;  "  and  he  adds  :  "  this  was  decided  b}'  the  cases  of  Stead 
V.  Dawber,  10  Ad.  &  E.  57,  and  Marshall  v.  Lynn,  6  M.  &  W.  109." 
As  to  the  cases  cited  from  East,  too  much  importance  has  been 
attached  to  them.  The  first  case,  Hill  v.  Patton,  8  East,  373,  amounts 
to  no  more  than  this,  that  the  court  was  bound  to  construe  tlie  con- 
tract before  it  without  regard  to  the  stamp,  and  having  done  so, 
then  to  see  how  the  Stamp  Acts  operated  upon  it.  In  the  second 
case,  French  v.  Patton,  9  East,  3.51,  it  was  held  that,  although  the 
Stamp  Acts  operated  to  prevent  the  plaintiff  from  recovering  upon  the 
policy  as  altered,  that  circumstance  could  not  enable  him  to  recover 
upon  it  in  its  original  form,  when  he  had  himself  consented  to  the 
alteration  of  the  written  words. 

Blackburn,  Mellor,  Montague,  Smith,  and  Lush,  JJ.,  concurred. 

Judgment  affirmed. 


664  HICKMAN   V.  HAYNBS.  [CHAP.    IV. 


HICKMAN   V.    HAYNES. 

In  the  Common  Pi.eas,  July  9,  1875. 

[Reported  in  Law  Reports,  10  Common  Pleas,  598.] 

July  9.  The  judgment  of  the  Court  (Lord  Coleridge,  C.  J.,  Grove, 
Archibald,  and  Lindley,  JJ.)  was  delivered  by 

LiNDLEY,  J.  This  was  an  action  for  not  accepting  certain  iron 
agreed  to  be  sold  by  the  plaintiff  to  the  defendants.  The  contract  for 
sale  of  the  iron  was  in  writing,  and  was  required  so  to  be  by  the 
17th  section  of  the  Statute  of  Frauds.  The  bought-note  was  as 
follows :  — 

"Tipton,  6th  March,  1873. 

"  Bought  of  Alfred  Hickman,  Esq.,  one  hundred  tons  of  Grey  Forge  Mine 
pig  iron,  at  71.  10s.  per  ton.  Delivered  at  Tividale  Street  Mills,  Tipton. 
Payment  in  cash,  less  2^  discount,  monthly.  Delivery  twenty-five  tons  this 
month,  and  twenty-five  tons  per  month  during  April,  May,  and  June  next. 

"  The  Tividale  Iron  Company.  J.  P.  Haynes." 

Pursuant  to  this  contract  the  plaintiff  delivered  and  the  defendants 
accepted  and  paid  for  seventj'-five  tons  of  the  iron  ;  but,  owing  to  the 
circumstances  stated  below,  the  plaintiff  did  not  deliver  the  last  twenty- 
five  tons,  for  the  price  of  which  the  action  is  brought. 

It  appears  from  the  evidence  taken  at  the  trial,  that,  on  the  2d  of 
June,  and  again  in  the  middle  of  June,  the  defendant  Ha\y^nes  saw  the 
plaintiff,  and  verbally  requested  him  to  allow  the  delivery  of  the  last 
twenty-five  tons  to  stand  over,  and  that  the  plaintiff  verbally  assented 
to  this  request ;  and  accordingly  nothing  further  was  done  by  either 
side  until  the  1st  of  August,  1873,  when  plaintiff  wrote  to  defendants 
as  follows :  "Permit  me  to  call  your  attention  to  your  contract  with 
me  for  pig  iron,  of  which  twentj'-five  tons  remain  to  be  delivered.  I 
have  held  them  until  now,  as  you  requested,  and  shall  be  glad  to  know 
when  you  propose  to  take  delivery.  If  it  is  not  convenient  for  3'ou  to 
take  the  iron,  I  shall  be  glad  to  know  if  j'ou  will  be  willing  to  pay  the 
difference  in  price,  if  I  instruct  Mr.  Lewis  to  sell  them." 

This  led  to  some  correspondence,  which  was  terminated  by  a  letter 
written  by  the  defendants  on  the  9th  of  August,  asking  for  more  time. 
The  plaintiff  again  waited  for  a  reasonable  time,  but  without  result. 
On  the  20th  of  October,  1874,  the  writ  was  issued. 

The  case  was  sent  for  trial  in  the  Dudley  County  Court,  and  was 
tried  there  on  the  28th  of  May,  1875,  when  a  verdict  was  found  for  the 
plaintiff,  damages  25^.,  with  leave  for  the  defendants  to  move  for  a  non- 
suit, or  for  a  reduction  of  the  damages.  Pursuant  to  the  leave  thus 
reserved,  a  rule  was  obtained  to  show  cause  wh}'  a  nonsuit  should  not 
be  entered,  on  the  ground  that  the  parol  agreement  to  postpone  delivery 
of  the  iron  was  invalid  under  the  Statute  of  Frauds,  or  why  the  damages 
should  not  be  reduced  to  2ll.  17s.  Qd.,  or  to  71.  5s.,  if  the  Court  should 


SECT..  II.]  HICKMAN   V.    HAYNES.  665 

be  of  opinion  that  they  ought  to  be  assessed  on  the  30th  of  June,  1873, 
or  on  the  2cl  of  June,  1873. 

The  declarution  was  framed  upon  the  contract  above  set  forth,  and 
averred  as  a  breach,  that,  although  the  defendants  had  accepted  and 
paid  for  seventy-five  tons,  they  would  neither  accept  nor  pay  for  the 
last  twenty-five  tons  ;  alleging  also  that  the  defendants  had  exonerated 
the  plaintiff  from  delivering  the  twenty-five  tons  at  the  Tividale  Street 
Mills,  as  agreed. 

Amongst  other  pleas,  the  defendants  traversed  the  alleged  exonera- 
tion, and  also  pleaded,  thirdly,  that  the  plaintiff  was  not  read}-  and 
willing  to  deliver  the  said  twent3'-five  tons  according  to  the  terms  of 
the  agreement ;  and,  fifthl}',  that  before  breach  the  plaintiff  discharged 
the  defendants  from  further  performance  of  the  agreement. 

In  this  state  of  the  record,  and  upon  the  evidence  above  set  forth, 
it  was  contended  before  us  that  there  was  in  fact  a  new  and  substituted 
agreement  for  delivery  and  acceptance  of  the  last  twentj'-five  tons  of 
iron  at  a  time  subsequent  to  that  originally'  agreed  upon,  which  was 
sufficient  to  exonerate  the  defendants  from  the  further  performance  of 
the  original  agreement,  but  which,  not  being  in  writing,  could  not  be 
enforced,  b\-  reason  of  the  Statute  of  Frauds,  and  that  no  amendment 
of  the  declaration,  therefore,  would  enable  the  plaintiff  to  maintain  his 
action ;  and  also  that  the  plaintiff's  verbal  assent  to  postpone  the 
delivery  of  the  twenty-five  tons  until  the  1st  of  August  established  con- 
clusively that  he  was  not  ready  and  willing  to  deliver  in  June,  accord- 
ing to  the  terms  of  the  written  contract,  and  therefore  he  was  not  in 
a  condition  to  recover  upon  the  original  contract  as  set  out  in  the 
declaration. 

It  is  to  be  observed  that  there  was  no  plea,  in  terms,  of  a  new  and 
substituted  contract.  The  defendants'  contention  was  based  upon  the 
fifth  plea,  i.e.  of  a  discharge  before  breach,  relying  upon  the  evidence 
also  in  support  of  the  plea  alleging  absence  of  readiness  and  willingness 
to  deliver  pursuant  to  the  written  agreement.  The  argument,  in  sub- 
stance, was,  that  the  plaintiff  was  not  in  fact  readv  and  willing  to  deliver 
the  iron  according  to  the  written  contract,  and  that  in  point  of  law  it 
was  immaterial  that  he  would  have  delivered  or  been  ready  and  willing 
to  deliver  the  iron  according  to  the  written  contract,  had  it  not  been 
for  the  previous  verbal  request  of  the  defendants  not  to  deliver  it.  It 
was  frankly  admitted  b}'  the  defendants'  counsel  that  this  defence  was 
quite  beside  the  real  merits  of  the  case  ;  but  it  was  stienuously  con- 
tended that,  having  regard  to  the  Statute  of  Frauds,  and  to  the  deci- 
sions of  Noble  V.  Ward,  Law  Rep.  1  Ex.  117;  in  error.  Law  Rep. 
2  Ex.  135  ;  Stead  v.  Dawber,  10  A.  &  E.  57  ;  and  Goss  v.  Lord  Nugent, 
5  B.  &  Ad.  58  ;  the  plaintiff  could  not  maintain  his  action,  and  ought 
to  be  nonsuited. 

The  proposition  that  one  party  to  a  contract  should  thus  discharge 
himself  from  his  own  obligations  by  inducing  the  other  party  to  give 
him  time  for  their  performance,  is,  to  say  the  least,  very  startling,  and 


6Q6  HICKMAN   V.   HAYNES.  [CHAP.   IV'. 

if  well  founded  will  enable  the  defendants  in  this  case  to  make  use  of 
the  Statute  of  Frauds,  not  to  prevent  a  fraud  upon  themselves,  but  to 
commit  a  fraud  upon  the  plaintiff.  It  need  hardly  be  said  that  there 
must  be  some  very  plain  enactment  or  strong  authority  to  force  the 
Court  to  countenance  such  a  doctrine. 

The  Statute  of  Frauds  contains  no  enactment  to  the  effect  contended 
for.  The  utmost  effect  of  the  17th  section  is  to  invalidate  an}-  verbal 
agreement  for  the  sale  of  goods  in  certain  cases  ;  and,  even  if  a  verbal 
agreement  for  extending  the  time  for  the  delivery  of  goods  already 
agreed  to  l)e  sold  is  within  the  statute,  —  as  to  which  see  per  Martin, 
B.,  in  Tyers  v.  Rosedale  and  P'erryhill  Iron  Co.,  Law  Rep.  8  Ex.  305  ; 
in  error,  Law.  Rep.  10  Ex.  195  ;  and  Leather  Cloth  Co.  v.  Hieronimus, 
Law  Rep.  10  Q.  B.  140,  the  plaintiff  in  this  case  is  not  attempliug  to 
enforce  any  such  verbal  agreement,  but  is  suing  on  the  original  agree- 
ment, which  was  in  writing. 

The  case  of  Noble  v.  Ward,  Law  Rep.  1  Ex.  117  ;  in  error.  Law  Rep. 
2  Ex.  135,  merely  shows  that  a  parol  agreement  to  extend  the  time  for 
performing  a  contract  in  writing,  and  required  so  to  be  by  the  Statute 
of  Frauds,  does  not  rescind,  vary,  or  in  any  way  affect  suL-h  written 
contract,  and  cannot  in  point  of  law  be  substituted  for  it.  In  Stead 
tK  Dawber,  10  A.  &  E.  57,  there  was  a  written  agreement  for  the  de- 
liver\'  of  goods  on  a  particular  day,  and  a  subsequent  verbal  agree- 
ment for  their  delivery  on  a  later  specified  day  ;  and  the  Court  came 
to  the  conclusion  that  the  parties  intended  to  substitute  the  later  verbal 
agreement  for  the  previous  written  agreement.  But,  in  the  case  now 
before  the  Court,  there  was  no  fresh  agreement  at  all  for  the  delivery 
of  the  twcnt3'-five  tons  which  can  be  regarded  as  having  been  substi- 
tuted for  the  original  written  contract.  There  was  nothing  more  than 
a  waiver  by  the  defendants  of  a  deliver}-  by  the  plaintiff  in  June  of 
the  last  twenty-five  tons  of  iron  ;  and  it  should  seem  that  in  Stead 
V.  Dawber,  suj^ra,  the  Court  would  have  been  in  favor  of  the  plaintiff 
if  they  had  come  to  the  conclusion  that  there  had  been  no  substitution 
of  one  agreement  for  another.  Marshall  v.  Lynn,  6  M.  &  W.  109,  was 
a  somewhat  similar  case  decided  on  similar  grounds. 

Goss  V.  Lord  Nugent,  5  B.  &  Ad.  58,  turned  on  the  4:th  and  not  on 
the  17th  section  of  the  statute;  but  we  do  not  think  this  important. 
The  plaintiff"  had  agreed  in  writing  to  sell  certain  property  to  the 
defen<laiit,  and  to  make  a  good  title  to  the  whole  ;  but  this  the  plaintiff 
■was  unable  to  do.  He  never  could,  therefore,  have  maintained  an 
action  on  the  original  written  contract,  if  nothing  further  had  been 
done.  But  the  defendant  verbally  agreed  to  waive  his  right  to  call  for 
a  good  title  to  part  of  the  land;  and,  having  afterwards  declined  to 
complete  tiie  purchase,  he  was  sued  by  the  plaintiff,  and  it  was  held 
that  tlie  action  did  not  lie.  The  ground  of  this  decision  was,  that  the 
plaintiflfwas  in  truth  seeking  to  enforce  an  agreement  relating  to  land, 
and  which  agreement  was  partly  in  writing  and  partly  verbal,  which 
by  the  statute  he  could  not  do.     The  Court  in  this  case  also  regarded 


SECT.    II.]  HICKMAN   V.    HAYNES.  667 

the  parties  as  having  entered  into  a  new  verbal  contract  as  to  part  of 
the  property,  and  as  having  substituted  this  contract  for  the  original 
written  contract ;  and  in  this  view  of  the  case  the  plaintiff  could  not 
recover. 

In  Stowell  V.  Robinson,  3  Bing.  (N.C.)  928,  it  was  held  that  the 
time  for  performing  a  contract  in  writing  for  the  sale  of  land  could  not 
be  enlarged  b}'  parol.  In  that  case  the  defendant  set  up  the  parol 
agreement  in  answer  to  the  plaintiff's  action  for  the  recoverv  of  his 
deposit,  and,  the  Court  holding  the  parol  agreement  to  be  invalid,  the 
plaintitf  recovered. 

The  result  of  these  cases  appears  to  be  that  neither  a  plaintiff  nor 
a  defendant  can  at  law  avail  himself  of  a  parol  agreement  to  varj'  or 
enlarge  the  time  for  performing  a  contract  previous!}'  entered  into  in 
writing,  and  required  so  to  be  b}'  the  Statute  of  Frauds.  But,  so  far 
as  this  princi[)le  has  an\'  application  to  the  present  case,  it  appears  to 
us  rather  to  preclude  the  defendants  from  setting  up  an  agreement  to 
enlarge  the  time  for  delivery  in  answer  to  the  plaintiff's  demand,  than 
to  prevent  the  plaintiff  from  suing  on  the  original  contract  for  a  breacli 
of  it.  There  was,  in  truth,  in  this  case  no  binding  agreement  to 
enlarge  the  time  for  deliver}-.  The  county  court  judge  finds  that  the 
plaintiff  permitted  the  defendants  to  postpone,  for  their  own  con- 
venience, the  acceptance  of  the  iron  in  dispute,  and  that  the  A'oluntary 
withholding  delivery  at  the  request  of  the  defendants  was  usual  in  the 
ordinary  course  of  dealings  of  a  similar  kind  in  the  iron  trade.  This 
finding,  in  fact,  shows  that  at  any  time  in  June  either  party  could  have 
changed  his  mind,  and  required  the  other  to  perform  the  contract 
according  to  its  original  terms :  see  Tyers  v.  Rosedale  and  Ferryhill 
Iron  Co.,  Law  Rep.  10  Ex.  19.5,  as  decided  in  error,  reversing  the 
decision  below.     Law  Rep.  8  Ex.  305. 

The  distinction  between  a  substitution  of  one  agreement  for  another 
and  a  voluntary  forbearance  to  deliver  at  the  request  of  another,  was 
pointed  out  and  recognized  in  Ogle  v.  Lord  Vane.  Law  Rep.  2  Q.  B. 
275  ;  in  error,  Law  Rep.  3  Q.  B.  272.  In  that  case  the  plaintiff  sued 
the  defendant  for  not  delivering  iron  pursuant  to  a  written  contract, 
and  the  plaintiff  sought  to  recover  as  damages  the  difference  between 
the  contract  price  of  the  iron  and  the  market  price,  not  at  the  time  of 
the  defendants'  breach,  but  at  a  later  time,  the  plaintiff  having  been 
induced  to  wait  by  the  defendant,  and  having  waited  for  his  con- 
venience. It  was  contended  that  the  plaintiff  was  in  fact  suing  for  the 
breach  of  a  new  verbal  agreement  for  delivery  at  a  later  date  than  that 
fixed  by  the  original  agreement ;  but  the  Court  held  otherwise,  and 
that,  as  the  plaintiff  had  merely  forborne  to  press  the  defendant,  and 
had  not  bound  himself  by  any  fresh  agreement,  the  plaintiff  could  sue 
on  the  original  agreement,  and  obtain  larger  damages  than  he  could 
have  obtained  if  he  had  not  waited  to  suit  the  defendant's  convenience. 
Mr.  Justice  Blackburn,  Law  Rep.  2  Q.  B.  at  p.  282,  iiointed  out  very 
clearly  the  distinction  to  which  we  are  now  adverting,  and  came  to  the 


668  WALTER   V.   VICTOR   G.   BLOEDE   CO.  [CHAP.  IV. 

conclusion  that  in  Ogle  ?•.  Lord  Vane  there  was  no  substitution  of  one 
contract  for  another,  and  that  all  that  the  parties  did  was  this  :  "  The 
plaintiff  was  willing  to  wait  at  the  request  of  the  defendant  for  the 
defendant's  convenience,  and  he  did  wait  for  a  long  time,  till  February ; 
but,  if  he  had  lost  patience  sooner,  and  refused  to  wait  longer,  he 
would  have  had  a  right  to'  bring  his  action  at  once  for  the  breach  in 
July.  It  is  clearly  a  case  of  voluntary  waiting,  and  not  of  alteration 
in  the  contract;  and  the  length  of  time  can  make  no  difference."  In 
that  case,  the  request  for  forbearance  was  made  b}-  the  vendor  after 
the  contract  had  been  broken :  in  this  case  the  request  for  time  was 
made  b}'  the  purchasers  both  before  and  after  the  time  for  completing 
the  contract  had  expired :  but  this  distinction  does  not  appear  to  us  to 
be  material:  see  Tyers  v.  Rosedale  and  Ferryhill  Iron  Co.,  Law  Rep. 
8  Ex.  305  ;  in  error,  Law  Rep.  10  Ex.  195. 

In  conclusion,  we  think  that,  although  the  plaintiff  assented  to  the 
defendants'  request  not  to  deliver  the  twentj'-five  tons  of  iron  in  ques- 
tion in  June,  he  was  in  truth  ready  and  willing  then  to  deliver  them, 
and  that  the  defendants  are  at  all  events  estopped  from  averring  the 
contrary.  The  plaintiff  not  having  bound  himself  by  an}'  valid  agree- 
ment to  give  further  time,  but  having  for  the  convenience  of  the 
defendants  waited  for  a  reasonable  time  after  the  letter  of  the  9th  of 
August,  to  enable  the  defendants  to  perform  the  contract  on  their  part, 
is  entitled  on  the  expiration  of  that  time  to  treat  the  contract  as  broken 
by  the  defendants  at  the  end  of  June,  when  in  truth  it  was  broken. 

The  question  whether  the  damages  ought  to  be  estimated  at  211.  17s. 
6c?.,  i.  e.  according  to  the  price  of  iron  at  that  time,  or  at  2ol.,  i.  e. 
according  to  the  price  at  the  end  of  a  reasonable  time  after  the  letter 
of  the  9th  of  August,  was  admitted  to  be  immaterial ;  but,  on  the 
principle  of  Ogle  v.  Lord  Vane,  Law  Rep.  2  Q.  B.  275;  in  error,  Law 
Rep.  3  Q.  B.  272,  we  think  the  plaintiff  was  entitled  to  have  the 
damages  assessed  according  to  the  price  at  the  later  date.  For  these 
reasons,  therefore,  we  are  of  opinion  that  this  rule  to  set  aside  the 
verdict,  and  to  enter  a  nonsuit,  or  to  reduce  the  damages,  ought  to  be 
discharged.  Hule  discharged. 


EDWARD  J.    WALTER   v.   VICTOR   G.    BLOEDE   CO. 
Maryland  Supreme  Court,  November  22,  1901. 

[Reported  in  94  Maryland,  80.] 

Pearce,  J.,^  delivered  the  opinion  of  the  Court. 

On  October  27th,  1899,  the  appellee  entered  into  a  written  contract 
with  the  appellant  to  purchase  of  him  50  tons  of  2,240  pounds  each,  of 
tapioca  flour  of  a  certain  brand,  to  be  shipped  b}''  steamer  from  Europe, 
and  to  be  delivered  at  Canton,    Baltimore,  ten  tons  monthly,   from 

1  A  portion  only  of  the  opinion  is  printed. 


SECT.    II.]  WALTER    V.   VICTOR    G.    BLOEDE   CO.  669 

November,  1899,  to  March,  1900,  both  inclusive.  Payment  to  be 
made  in  cash,  at  the  rate  of  4|  cents  per  pound  upon  arrival  of  each 
lot ;  and  this  action  was  brought  by  the  appellant  to  recover  damages 
for  the  alleged  breach  of  this  contract  by  the  appellee  in  refusing  to 
accept  and  pay  for  part  of  the  flour  thus  purchased. 

About  7^  tons  were  delivered  November  27th,  1899,  which  the 
appellee  accepted  and  paid  for,  but  no  further  deliveries  have  been 
made  by  the  appellant. 

The  declaration  set  out  the  contract  full}',  and  the  delivery  made  as 
above,  and  then  averred  that  on  December  18th  it  was  agreed  between 
the  parties  that  the  shipments  of  the  remaining  42^  tons  should  be 
monthly  during  Januar}',  February,  March,  and  April,  1900,  instead 
of  December,  1899,  and  Januarj-,  February,  and  March,  1900,  as 
stipulated  in  the  written  contract ;  and  that  still  later,  on  February 
2d,  1900,  plaintiff  informed  defendant  that  for  reasons  then  explained, 
and  beyond  his  control,  there  would  be  still  further  delay  in  the 
monthly  shipments  from  Europe,  and  that  he  would  not  be  able  to 
make  deliveries  as  agreed  upon  December  18th,  and  that  defendant 
then  waived  the  monthly  deliveries  as  agreed  upon  December  18th,  and 
agreed  to  accept  the  same  as  the}'  arrived.  The  defendant  pleaded  the 
general  issue,  and  the  case  was  tried  before  the  court  without  a  jury, 
the  verdict  and  judgment  being  for  the  defendant.  Four  exceptions 
were  taken  by  the  plaintiff  to  rulings  upon  the  testimony  and  one  to 
the  ruling  upon  the  pra3'ers,  the  main  question  in  the  case  being 
whether  a  verbal  agreement  for  the  extension  of  time  for  the  deliveries 
fixed  by  the  contract  is  admissible  in  evidence.  [The  trial  judge 
excluded   the   evidence.] 

It  is  settled  that  at  common  law  the  parties  to  a  written  agreement, 
not  under  seal,  before  any  breach  has  occurred,  may,  by  a  mere  oral 
agreement  vary  one  or  more  of  the  terms  of  the  contract,  or  wholly' 
waive,  or  annul  it,  and  thus  make  a  new  contract  resting  partly  in 
writing  and  partly  in  parol,  and  as  such  remaining  obligatory  upon 
the  parties.  Browne  on  the  Statute  of  Frauds,  5th  ed.,  sec.  409; 
Kerr's  Benjamin  on  Sales,  sec.   240. 

But  the  question  here  is,  whether  this  rule  is  applicable  in  this 
State  to  contracts  required  to  be  in  writing  by  the  provisions  of  the 
Statute  of  Frauds.  In  England  it  was  held  by  Lord  EUenborough, 
in  Cuff  i^.  Penn,  1  Maule  &  Selwyn,  21,  that  the  rule  was  applicable 
there.  In  that  case  there  was  a  written  contract  for  the  purchase  of 
300  hogs  of  bacon  to  be  delivered  at  fixed  times,  and  in  specified 
quantities.  After  part  delivery  defendant  requested  plaintiff  not  to 
press  delivery  of  the  residue  as  sale  was  dull,  to  whicli  plaintiff  as- 
sented, and  the  Court  said  this  was  only  a  parol  dispensation  of  per- 
formance of  the  original  contract  in  respect  to  the  times  of  delivery, 
and  vsras  not  affected  by  the  Statute  of  Frauds  ;  thus  distinguishing 
between  the  contract  itself,  as  being  the  only  thing  required  by  the 
statute  to  be  in  writing,  and  the  performcmce  of  the  contract  as  some- 
thing  distinct  from   the  contract,  and  to  which   the  statute   has   no 


670  WALTER    V.   VICTOR    G.    BLOEDE   CO.  [CHAP.    IV. 

application.  But  the  authority  of  that  case  does  not  appear  to  have 
been  ever  fully  accepted  in  England,  and  has  long  been  regarded  there 
as  overruled  b}''  later  cases.  In  Stead  v.  Dawber,  10  Ad.  &  El.  57,  it 
was  distinctly  doubted  by  Lord  Denman,  who  declined  to  follow  it, 
though  not  overruling  it  otherwise  than  by  the  course  of  his  reasoning. 
In  Marshall  v.  Lynn,  6  Meeson  &  Welsby,  109,  the  point  to  be 
decided,  as  stated  in  the  opinion,  was,  where  a  written  contract  for  the 
sale  of  goods  within  the  statute,  stated  a  time  for  the  delivery  of  the 
goods,  whether  an  agreement  to  substitute  another  day  for  that  pur- 
pose, if  made  by  parol,  could  be  binding ;  and  it  was  held  in  an 
opinion  by  Baron  Parke,  that  it  could  not.  In  the  course  of  that 
opinion  he  said,  "  as  the  case  of  Cuff  w.  Penn,  which  had  before  been 
ver}'  much  doubted,  appears  to  have  been  overruled  bj'  Stead  v. 
Dawber,  we  do  not  think  it  necessar}'^  to  do  so,"  and  the  rule  thus 
laid  down  has  been  firmly  established  by  later  cases  as  the  law  in 
England.  Browne  on  the  Statute  of  Frauds,  sec.  411  ;  Kerr's  Ben- 
jamin on  Sales,  sec.  240. 

In  this  country  there  is  some  divergence  of  opinion  among  the 
States,  though  the  weight  of  authority  seems  to  be  decidedly  with  the 
English  rule,  and  the  Supreme  Court  of  the  United  States  is  in  full 
accord  therewith. 

In  Swain  v.  Seamens,  9  Wall.  271  (76  U.  S.),  it  is  said  :  "Views  of 
the  complainants  are  that  an  agreement,  though  in  writing  and  under 
seal,  may  in  all  cases,  be  varied  as  to  time  or  manner  of  its  perform- 
ance, or  may  be  waived  altogether,  b}'  a  subsequent  oral  agreement  ; 
but  the  Court  is  of  a  different  opinion,  if  the  agreement  to  be  modified 
is  within  the  Statute  of  Frauds.  .  .  .  Reported  cases  maj*  be  found 
where  that  rule  is  promulgated  without  any  qualification;  but  the 
better  opinion  is  that  a  written  contract  falling  witiiin  the  Statute  of 
Frauds,  cannot  be  varied  by  any  subsequent  agreement  of  the  parties, 
unless  such  new  agreement  is  also  in  writing.  Express  decision  in 
the  case  of  Marshall  v.  Lynn  is  that  the  terms  of  a  contract  for  the 
sale  of  goods  falling  within  the  operation  of  the  Statute  of  Frauds 
cannot  be  varied  or  altered  by  parol."  And  to  the  same  effect  are  the 
cases  of  Emerson  v.  Slater,  22  Howard,  28  ;  P.  W.  &  B.  R.  R.  Co.  v. 
Trimble,  10  Wallace,  367  (77  U.  S.) ;  The  Delaware,  14  Wallace, 
579  (81  U.  S.);   Hawkins  v.  United  States,  96  U.  S.  689. 

But  the  appellant  contends  that  in  Maryland  a  contrary  rule  has 
been  declared  in  three  cases,  which  it  will  therefore  be  necessary  to 
consider  carefull}'. 

[The  Court  here  examined  the  cases  of  Watkins  ?>.  Hodges,  6  H. 
«fe  J.  37;  Reed  v.  Chambers,  6  G.  &  J.  490;  Franklin  v.  Long, 
7  G.  &  J.  417,  and  disapproved  any  implication  in  these  cases  that  a 
parol  agreement  extending  time  for  performance  was  valid.] 

Judgment  affirmed  with  costs} 

1  Plevins  v.  Downing,  1  C.  P.  D.  220;  Lawyer  v.  Post,  109  Fed.  Rep.  512; 
Bradley  v.  Harter,    156  Ind.  499 ;  Clark  v.   Fey)    121    N.  Y.   470,   ace. 


SECT,   n.]  CUMMTNGS   V.   AKNOLD.  671 


GEORGE   CUMMINGS   v.   SMITH  ARNOLD  and  Others. 
Supreme  Judicial  Court  of  Massachusetts,  March  Term,  1842. 

[Reported  in  3  MetcaJf,  486.] 

Assumpsit  on  the  following  agreement:  "October  26th  1838. 
This  is  to  show  that  I  agree  to  furnish  and  deliver  to  Cummings, 
Hildreth  &  Co.  of  Boston,  all  the  'mnting  cloths  which  I  make  in  my 
looms,  which  are  on  35  inch  cloths,  and  which  make  150  pieces  of 
cloth  per  week  ;  the  quality  to  be  the  same  as  those  sold  bj'  H.  Power 
to  Cummings,  Hildreth  &  Co.  on  my  account ;  the  warp  being  64 
picks  to  the  inch,  the  filling  60  picks  or  threads  to  the  inch.  These 
goods,  to  the  amount  of  one  hundred  and  fift}'  pieces  per  week,  I  agree 
to  deliver  to  Cummings,  Hildreth  &  Co.  in  Boston,  up  to  March  1st,  1839, 
at  eight  and  one  quarter  cents,  say  8|  yd.  on  eight  months'  credit. 
Smith  Arnold  &  Co."  The  declaration  averred  that  the  plaintiffs  had 
always  been  ready  and  desirous  to  receive  and  pay  for  said  goods, 
according  to  the  terms  of  said  agreement,  yet  that  the  defendants  had 
not  delivered  and  furnished  the  same. 

The  defendants  filed  the  following  specifications  of  defence :  1. 
"  That  it  was  agreed  [by  parol]  between  the  plaintiffs  and  defendants, 
at  the  time  when  the  above  contract  was  entered  into,  and  after  its 
execution  and  delivery,  that  the  plaintiffs  should  give,  in  pa\ment 
for  the  goods,  satisfactory  promissory  notes,  such  as  would  be  dis- 
counted at  tlie  bank  where  the  defendants  did  business  ;  which  notes 
were  not  given,  as  agreed,  but  were  refused."  2.  "  Tliat  after  the 
making  of  the  above  agreement,  a  proposition  was  made  b}'  the  plain- 
tiffs to  pay  cash  for  the  goods,  at  five  per  cent  discount :  That 
Arnold,  one  of  the  defendants,  to  whom  this  proposition  was  made, 
then  being  in  Boston,  told  the  plaintiffs  he  thought  the  defendants 
should  accept  the  offer,  but  wished  to  consult  with  his  partner ;  for 
which  purpose  time  was  allowed  him  ;  that  he  went  .home  and  con- 
sulted his  partner,  and  wrote  immediately  to  the  plaintiffs  that  they 
(the  defendants)  should  accept  the  proposition ;  but  that  the  plaintiffs 
afterwards  refused  to  adhere  to  the  bargain,  as  it  was  not  closed  at 
the  time  the  proposition  was  made." 

At  the  trial  before  Putnam,  J.,  the  defendants  offered  to  prove  the 
oral  agreements  mentioned  in  their  specification,  and  that  they  were 
made  on  a  legal  and  valid  consideration.  But  the  judge  refused  to 
admit  the  proof,  and  a  verdict  was  returned  for  the  plaintiffs.  The 
defendants  moved  for  a  new  trial. 

This  case  was  argued  at  the  last  March  term. 

J^.  Sumner,  for  the  defendants. 

Codman,  for  the  plaintiffs. 

Wilde,  J.  This  case  comes  before  us  on  exceptions  to  the  rulings 
of  the  court  at  the  trial,  whereby  the  evidence  offered  by  the  defend- 


672  CUMMINGS   V.   ARNOLD.  [CHAP.  IV. 

ants  was  rejected,  on  the  ground  that  the  facts  offered  to  be  proved 
would  not  constitute  a  legal  defence.  The  action  is  founded  on  a 
written  contract,  by  which  the  defendants  undertook  to  deliver  to  the 
plaintiffs,  at  a  stipulated  price,  a  certain  quantity  of  cloths  for  print- 
ing, from  time  to  time,  between  the  26th  daj'  of  October,  1838,  and  the 
first  of  March  following. 

The  defendants  admit  that  the  written  contract  was  not  performed 
by  them  according  to  the  terms  of  it ;  and  they  rely  on  two  oral  agree 
ments,  made  subsequently  to  the  execution  of  the  written  contract,  by 
the  last  of  which  it  was  agreed  that  the  plaintifTs  sliould  pa}^  cash  for 
the  goods  to  be  sent  to  them  by  tlie  defendants — the}'  discounting 
5  per  cent  on  the  stipulated  price,  whenever  the  goods  sent  skould 
amount  to  the  value  $1,000,  not  before  paid  for;  that,  under  this  last 
verbal  agreement,  the  defendants  delivered  150  pieces  of  goods,  and 
that  the  plaintiffs  refused  to  perform  said  agreement  on  their  part. 
The  defendants  also  offered  to  prove  that  each  of  these  verbal  agree- 
ments was  made  on  a  legal  and  good  consideration.  The  question  is, 
whether  these  facts,  if  proved,  would  constitute  a  legal  defence  to  the 
action. 

The  general  rule  is,  that  no  verbal  agreements  between  the  parties 
to  a  written  contract,  made  before  or  at  the  time  of  the  execution  of 
such  contract,  are  admissible  to  varj'  its  terms  or  to  affect  its  construc- 
tion. All  such  verbal  agreements  are  considered  as  varied  by  and 
merged  in  the  written  contract.  But  this  rule  does  not  apply  to  a 
subsequent  oral  agreement  made  on  a  new  and  valuable  consideration, 
before  the  breach  of  the  contract.  Such  a  subsequent  oral  agreement 
may  enlarge  the  time  of  performance,  or  ma}'  vary  any  other  terms  of 
the  contract,  or  may  waive  and  discharge  it  altogether.^ 

But  the  plaintiffs'  counsel  contends,  that  however  the  general  princi- 
ple may  be,  as  to  the  effect  of  a  parol  agreement  on  a  previous  written 
contract,  it  is  not  applicable  to  the  present  case,  the  parol  agreement 
being  void  by  the  statute  of  frauds ;  and  that  to  allow  a  parol  agree- 
ment to  be  engrafted  upon  a  written  contract,  would  let  in  all  the 
inconveniences  which  were  intended  to  be  obviated  b}'  the  statute.  In 
considering  this  objection,  we  have  met  with  man}^  conflicting  deci- 
sions, but  for  which,  we  should  have  had  but  little  difficulty  in  dispos- 
ing of  the  question  raised.  And  notwithstanding  the  doubts  excited 
b}'  some  of  these  decisions,  we  have  been  brought  to  a  conclusion, 
which  coincides,  as  we  think,  with  the  true  meaning  of  the  statute. 
The  language  of  the  4th  section  (Rev.  Sts.  c.  74),  on  which  the  ques- 
tion depends,  is  peculiar.  It  does  not  require  that  the  note  or  juem- 
oranduin  in  writing  of  the  bargain  should  be  signed  by  both  the 
contracting  parties,  but  only  "  by  the  part}'  to  be  charged  thereby,  or 
by  some  person  thereunto  by  him  lawfully  authorized." 

"The  principal  design  of  the  statute  of  frauds  was,"  as  Lord  I^llen- 
borough  remarks,  in  Cuff  t-.  Penn,  1  M.  &  S.  26,  "  that  parties  should 
1  Some  authorities  cited  here  by  the  eourt  are  omitted. 


SECT,    n.]  CITMIMINGS   V.   ARNOLD.  673 

not  have  imposed  on  them  burdensome  contracts  which  the}'  never 
made,  and  be  fixed  with  goods  which  they  never  contemplated  to  pur- 
chase." The  statute,  therefore,  requires  a  memorancUim  of  the  bargain 
to  be  in  writing,  that  it  may  be  made  certain  ;  but  it  does  not  undertake 
to  regulate  its  performance.  It  does  not  sa}'  that  such  a  contract  shall 
not  be  varied  by  a  subsequent  oral  agreement  for  a  substituted  per- 
formance. That  is  left  to  be  decided  by  the  rules  and  principles  of  law 
in  relation  to  the  admission  of  parol  evidence  to  var}'  the  terms  of  writ- 
ten contracts.  We  have  no  doubt,  therefore,  that  accord  and  satis- 
faction, by  a  substituted  performance,  would  be  a  good  defence  in  this 
action.  So  if  the  plaintiffs  had  paid  for  the  goods,  according  to  the 
oral  agreements  to  pay  cash  or  give  security,  and  the  defendants  had 
thereupon  completed  the  delivery  of  the  goods  contracted  for,  it  would 
have  been  a  good  performance  of  the  written  contract.  This  has  been 
prevented  (if  the  defendants  can  prove  what  they  offered  to  prove),  by 
the  plaintiffs'  refusal  to  perform  on  their  part  a  fair  and  valid  contract. 
And  it  is  a  well-settled  principle,  that  if  two  contracting  parties  are 
bound  to  do  certain  reciprocal  acts  simultaneously,  the  offer  of  one  of 
the  parties  to  perform  the  contract  on  his  part,  and  the  refusal  of  the 
other  to  comply  with  the  contract  on  his  part,  will  be  equivalent  to  a 
tender  and  refusal ;  and  in  the  present  case,  we  think  it  equivalent  to  an 
accord  and  satisfaction,  which  was  prevented  by  the  fault  of  the  plain- 
tiffs, who  agreed,  for  a  valuable  consideration  —  if  what  the  defend- 
ants offered  to  show  be  true  —  to  var}'  the  terms  of  the  written  contract 
as  to  the  time  of  pa3'ment,  and  afterwards  refused  to  compl}'  with  their 
agreement.  If  the  defendants  on  their  part  had  refused  to  perform 
the  verbal  agreement,  then  indeed  it  could  not  be  set  up  in  defence  of 
the  present  action  ;  for  the  party,  who  sets  up  an  oral  agreement  for  a 
substituted  performance  of  a  written  contract,  is  bound  to  prove  that 
he  has  performed,  or  has  been  read}'  to  perform,  the  oral  agreement. 

This  distinction  avoids  the  difficulty  suggested  in  some  of  the  cases 
cited,  where  it  is  said,  that  to  allow  a  party  to  sue  partly  on  a  written 
and  partly  on  a  verbal  agreement,  would  be  in  direct  opposition  to  the 
requisitions  of  the  statute  ;  and  it  undoubtedly  would  be  ;  but  no  party 
having  a  right  of  action  can  be  compelled  to  sue  in  this  form.  He 
may  always  declare  on  the  written  contract ;  and  unless  the  defendant 
can  prove  performance  according  to  the  terms  of  the  contract,  or 
according  to  the  agreement  for  a  substituted  performance,  the  plaintiff 
would  be  entitled  to  judgment.  We  think,  therefore,  that  the  evidence 
of  the  oral  agreements,  offered  at  the  trial,  should  have  been  admitted  ; 
the  same  not  being  within  the  statute  of  frauds,  and  the  evidence  being 
admissible  by  tlie  rules  of  law. 

In  support  of  this  view  of  the  case,  I  shall  not  attempt  to  reconcile 
all  the  conflicting  opinions  which  have  been  held  in  similar  or  nearly 
similar  cases,  some  of  which  appear  to  have  been  decided  on  very 
subtle  and  refined  distinctions.  I  will,  however,  refer  to  a  few  deci- 
sions which  bear  directly  on  the  present  case.     The  case  of  Cuff  v. 


674 


CUMMINGS    V.   ARNOLD. 


[chap.   IV. 


Penn,  1  M.  &  S.  21,  is  a  strong  authorit)'  in  favor  of  the  defendants, 
as  the  facts,  on  which  the  decision  in  that  case  depended,  are  in  all 
respects  substantially  similar  to  those  offered  to  be  proved  in  this 
action.  That  was  an  action  of  assumpsit  for  not  accepting  a  quantity 
of  bacon,  which  b}'  a  written  contract  the  defendant  agreed  to  pur- 
chase of  the  plaintiff,  to  be  delivered  at  certain  fixed  times.  After  a 
part  of  the  bacon  had  been  delivered,  the  defendant  requested  the 
plaintiff,  as  the  sale  was  dull,  not  to  press  the  deliver}'  of  the  resi- 
due, and  the  plaintiff  assented.  The  defendant  afterwards  refused  to 
accept  the  residue,  and  set  up  the  statute  of  frauds  in  defence  ;  but 
the  court  held,  that  there  was  a  parol  dispensation  of  the  performance 
of  the  written  contract  as  to  the  times  of  delivery,  which  was  not 
affected  by  the  statute  of  frauds.  Lord  EUenborough  says,  "I  think 
this  case  has  been  argued  very  much  on  a  misunderstanding  of  the 
statute  of  frauds,  and  the  question  has  been  embarrassed  by  confound- 
ing two  subjects  quite  distinct ;  nameh',  the  provision  of  the  statute, 
and  the  rule  of  law  whereb}'  a  part}'  is  precluded  from  giving  parol 
evidence  to  var}'  a  written  contract."  "  It  is  admitted,"  he  adds,  in 
another  part  of  his  opinion,  "  that  there  was  an  agreed  substitution 
of  other  da3's  than  those  originally  specified  for  the  performance  of 
the  contract;  still  the  contract  remains.  Suppose  a  delivery  of  live 
hogs  instead  of  bacon  had  been  substituted  and  accepted  ;  might  not 
that  have  been  given  in  evidence  as  accord  and  satisfaction?  So  here 
the  parties  have  chosen  to  take  a  substituted  performance." 

The  principle  on  which  the  case  was  decided  is  laid  down  in  several 
other  cases,  some  of  which  have  been  already'  cited  on  the  other  point 
of  defence. 

At  the  argument  of  the  case  of  Goss  v.  Lord  Nugent,  Parke,  J., 
remarked,  that  "in  Cuff  y.  Penn,  and  some  other  cases  relating  to  con- 
tracts for  the  sale  of  goods,  above  101.,  it  has  been  held,  that  the  time 
in  which  the  goods,  b}'  the  agreement  in  writing,  were  to  be  delivered, 
might  be  extended  b}'  a  verbal  agreement.  But  I  never  could  under- 
stand the  principle  on  which  those  cases  proceeded ;  for  the  new  con- 
tract to  deliver  within  the  extended  time  must  be  proved  partly  by 
written  and  partly  by  oral  evidence."  But  there  is  no  necessit}'  for 
the  plaintiflT  to  declare  partly  on  the  written  and  parti}'  on  the  oral 
agreement.  He  ma}'  always,  as  before  remarked,  declare  on  the  writ- 
ten contract,  and  the  defendant  will  be  bound  to  prove  a  performance 
according  to  the  terms  of  it,  or  according  to  the  terms  of  a  substituted 
performance  ;  and  performance  in  either  way  may  be  proved  by  parol 
evidence.     2  Watts  &  Serg.  218. 

Lord  Denmau,  who  delivered  the  opinion  of  the  court  in  Goss  tK 
Lord  Nugent,  does  not  question  the  correctness  of  the  decision  in  Cuff 
V.  Penn  ;  and  his  remarks  on  another  branch  of  the  statute  of  frauds 
seem  to  be  confirmatory  of  the  principle  laid  down  by  Lord  Ellen- 
borough  in  the  latter  case.  "It  is  to  be  observed,"  he  says,  "that 
the  statute  does  not  say  in  distinct  terms,  that  all  contracts  or  agree- 


SECT.   U.]  CUMIVUNGS   V.   AENOLD.  675 

meuts  concerning  the  sale  of  lands  shall  be  in  writing ;  all  that  it 
enacts  is,  that  no  action  shall  be  brought  unless  they  are  in  writing ; 
and  there  is  no  clause  which  requires  the  dissolution  of  such  contracts 
to  be  in  writing."  In  that  action,  however,  the  phiintitr  declared 
partly  on  the  written  and  partly  on  the  verbal  contract,  and  on  that 
ground  it  was  rightfully  enough  decided  that  the  action  could  not  be 
maintained. 

In  Stowell  V.  Robinson,  3  Bing.  N.  R  928,  and  5  Scott,  19G,  it  was 
held,  that  the  time  for  the  performance  of  a  written  contract  for  the 
sale  of  lands  could  net  be  enlarged  bj-  a  subsequent  oral  agreement, 
although  that  agreement  was  pleaded  by  the  defendant  as  a  bar  to  the 
action.  The  plea  was,  that  at  the  time  stipulated  for  the  performance 
of  the  written  contract,  neither  part}'  was  ready  to  complete  the  sale  ; 
and  the  time  for  the  performance  was  agreed  by  the  parties  to  be  post- 
poned. That  decision  seems  to  be  founded  on  the  doubt  suggested  by 
Parke,  J.,  in  Goss  v.  Lord  Nugent,  and  upon  the  decision  in  that  case, 
without  noticing  the  distinction  in  the  two  cases.  And  it  appears  to 
us,  that  the  case  of  Stowell  v.  Robinson  was  decided  on  a  mistaken 
construction  and  application  of  the  statute  of  frauds  ;  and  that  the  dis- 
tinction between  the  contract  of  sale,  which  is  required  to  be  in  writing, 
and  its  subsequent  performance,  as  to  which  the  statute  is  silent, 
was  overlooked,  or  not  suftlcientl}'  considered  by  the  court ;  otherwise, 
the  decision  perhaps  might  have  been  different.  We  think  there  is  no 
substantial  difference,  so  far  as  it  relates  to  the  statute  of  frauds, 
between  the  plea  in  that  case  and  the  plea  of  accord  and  satisfaction, 
or  a  plea  that  the  written  contract  had  been  totally  dissolved,  before 
breach,  by  an  oral  agreement;  either  of  which  pleas  would  have  been  a 
good  and  sufficient  bar  to  the  action.  We  are  aware  that  the  principle 
on  which  Stowell  v.  Robinson  was  decided  is  supported  by  other 
English  cases  cited  ;  but  the  principle  on  which  the  case  of  Cuff  v. 
Penn  was  decided  is  in  our  judgment  more  satisfactory,  and  better 
adapted  to  the  administration  of  justice  in  this  and  similar  cases. 

It  is  to  be  observed  in  the  present  case,  that  the  oral  agreements, 
offered  to  be  proved  by  the  defendants,  did  not  var\'  the  terms  of  the 
written  contract  as  to  its  performance  on  their  part ;  the  onl}-  altera- 
tion was  as  to  the  time  of  payment  by  the  plaintiffs.  Such  an  altera- 
tion, made  on  a  good  consideration,  and  before  an}*  breach  of  the 
contract,  may,  we  think,  be  proved,  without  any  infringement  of  the 
statute  of  frauds  or  any  principle  of  law. 

ITew  trial  granted ^ 

1  Smiley  v.  Barker,  83  Fed.  Rep.  684  (C.  C.  A.)  ;  Smith  v.  Loomis,  74  Me.  503  ; 
Lee  V.  Hawk.'*,  68  Miss.  669,  ace.  Conf.  Wiessner  v.  Ayer,  176  Mass.  425.  See  also 
lirowne,  §  411,  et  seq. 


CHAPTER  V. 

PERFORMANCE  OF  CONTRACTS. 


SECTION   I. 
EXPRESS   CONDITIONS. 


A.  —  Conditions  Precedent. 


CONSTABLE  v.   CLOBERIE. 
In  the  King's  Bench,  Hilary  Term,  1626 

[Reported  in  Palmer,  397.  | 

Covenant  upon  a  charter-party.  The  plaintiff  covenanted  that  hig 
ship  should  go  a  voyage  to  Cadiz  with  the  next  wind  ;  and  the  defend 
ant  covenanted  that  if  the  ship  went  the  intended  voyage,  and  returned 
tc  the  Downs,  the  plaintiff  should  have  so  much  for  the  vo^-age.  The 
defendant  traversed  that  the  ship  wont  with  the  next  wind,  and  upon 
demurrer  the  traverse  was  overruled,  for  the  substance  of  the  covenant 
was  that  the  ship  should  go,  and  not  that  she  should  go  with  thf>  next 
wind,  for  that  may  change  ever}'  hour ;  and  this  is  proved  by  the  cove 
nant  of  the  defendant,  ^iz.,  "  if  the  ship  went  the  intended  voyage  ; " 
and  this  was  the  primary  intention  of  the  parties,  and  not  that  she 
should  go  with  the  next  wind.  But,  i)er  Justice  Jones,  if  the  defendant 
had  covenanted  that  if  the  plaintiff  went  to  Cadiz  with  the  next  wind, 
he  would  pay,  &c.,  there  the  plaintiff  ought  to  aver  that  he  went  with 
the  next  wind. 


SECT.   L]  WOESLEY  V.   WOOD.  67T 


WORSLEY    V.    WOOD    and    Others,    Assignees    of  Locktbb    ash 

Bream,  Baiikrupis ;  in  Error. 

In  the  King's  Bench,  June  7,  1796. 

[Reported  in  6  Term  Reports,  710.] 

This  was  an  action  of  covenant  brought  in  the  Court  of  Common 
Pleas. ^  The  declaration  stated  tliat  b}-  a  poUcy  of  insurance  made  be- 
fore Lockyer  and  Bream  became  bankrupts,  namely,  on  the  9th  of 
March,  1792,  it  was  witnessed  that  Lockyer  and  Bream  had  paid  11/. 
16«.  to  the  Phoinix  Company,  and  had  agi^eed  to  pa3-  to  them,  at  their 
office,  the  sum  of  11/.  16s.  on  the  25th  of  March,  1793,  and  the  like  sum 
yearly  on  the  said  day  during  the  continuance  of  the  policy  for  insur- 
ance from  loss  or  damage  by  tire,  not  exceeding  the  sum  of  7,000/. 
That  Worsley  covenanted  with  L.  and  B.  that,  so  long  as  the  assured 
should  pa}'  the  above  premium,  the  capital  stock  and  funds  of  the 
Phoenix  Company  should  be  liable  to  pay  to  the  assured  an}*  loss  that 
the  assured  should  suffer  by  fire  on  the  property  therein  mentioned, 
not  exceeding  7,000/.,  according  to  the  tenor  of  the  printed  proposals 
delivered  with  the  polic}'.  That  in  the  printed  proposals  referred  to  by 
the  policy  it  is  declared  that  the  company  would  not  be  accountable  for 
any  loss  by  fire  caused  b}-  foreign  invasions,  civil  commotion,  &c.  ;  and 
also  that  all  persons  assured  sustaining  an}'  loss  by  fire  should  forth- 
with give  notice  to  the  compan}',  and  as  soon  as  possible  after  deliver 
in  as  particular  an  account  of  their  loss  as  the  nature  of  the  case  would 
admit,  and  make  proof  of  the  same  by  their  oath  and  1)}'  their  book  of 
accounts,  or  other  vouchers  as  should  be  reasonably  required,  and 
should  i)rocure  a  certificate  under  tlie  hands  of  the  minister  and  church- 
wardens and  of  some  reputable  householders  of  tlie  parish,  not  con- 
cerned in  the  loss,  importing  that  the}'  were  acquainted  with  the 
character  and  circumstances  of  the  person  insured,  and  knew  or  be- 
lieved that  he  by  misfortune  and  without  any  kind  of  fraud  or  evil 
practice  had  sustained  by  such  tire  the  loss  and  damage  therein  men- 
tioned ;  and  in  case  any  dilference  should  arise  between  the  assured  and 
the  company  touching  any  loss,  such  difference  should  be  submitted  to 
the  judgment  of  arbitrators  indifferently  chosen,  whose  award  shouk' 
be  conclusive,  &c.,  and  when  any  loss  should  have  been  duly  proved 
the  assured  should  immediately  receive  satisfaction  to  the  full  amoun 
of  the  same.  The  declaration  then  stated  that  on  the  1st  of  July,  i 
1792,  a  loss  happened  by  fire  in  the  house  of  L.  and  B.,  in  which  all 
their  books  of  accounts  were  destroyed,  to  the  amount  of  7,000/.  That 
L.  and  B.  on  the  same  day  gave  notice  of  it  t<e»  the  company,  and  on  the 
same    lay  deUvered  to  the  company  as  particular  an  account  of  their 

1  See  2  n.  Bl.  574.  —  Ed. 


C78  WORSLEY  V.   WOOD.  [CHAP.    V. 

loss  as  the  nature  of  the  case  admitted,  and  were  then  and  ihere  also 
ready  and  willing  and  then  and  there  tendered  to  make  proof  of  the 
loss  by  their  oath,  and  to  produce  such  vouchers  as  could  be  reasonably 
required  in  that  behalf;  that  on  the  same  day  they  procured  and  de- 
livered to  the  said  company  a  certifit;ate  under  the  hands  of  four  repu- 
table househokUirs  of  the  parish,  to  the  effect  required  in  the  printed 
proposals,  and  applied  to  E.  Embry,  the  minister,  and  H.  Ilutchins  and 
J.  Bellamy,  the  churchwardens  of  the  parish,  to  sign  such  certilicate,  but 
that  they,  without  any  reasonable  or  probable  cause,  wrongfullv  and  un- 
justly refused  and  have  ever  since  refused  to  sign  it.  The  declaration 
then  stated  that  the  funds  of  the  company  were  sufficient  to  pa}'  this  loss, 
yet  the  company  have  not  paid  it,  either  to  the  bankru{)ts  or  to  their 
assignees  ;  nor  have  the  company  submitted  the  said  ditlei-ence  to  the 
judgment  of  such  arbitrators,  &.c. 

There  was  another  count,  in  which  it  was  not  averred  that  the 
bankrupts  either  offered  to  make  proof  of  the  loss,  or  procured  a 
certificate,  or  applied  to  the  minister,  &c.,  for  one;  and  the  breach  in 
this  count  was,  that  the  company  had  not  submitted  the  said  difference 
to  the  judgment  of  such  arbitrators,  &c. 

The  defendant  pleaded  (to  the  first  count)  that  the  bankrupts 
were  not  interested  in  the  house  or  goods,  «fec.,  at  the  tune  of  the  loss, 
on  which  issue  was  taken  in  the  replication.  2d.  That  the  loss 
was  occasioned  hy  the  fraud  and  e\'i[  practice  of  the  bankrupts  ;  on 
which  issue  was  taken,  &c.  3d.  That  the  minister  and  church- 
wardens did  not  refuse  wrongfully  and  injuriously,  and  without  any 
reasonable  or  probable  cause,  to  sign  the  certificate  ;  on  which  issue  was 
taken.  To  the  second  count.  1st.  That  the  bankrupts  were  not 
interested,  &c.  ;  on  which  issue  was  taken.  2d.  That  the  loss  was 
occasioned  by  fraud,  &c.  (as  above)  ;  on  which  issue  was  taken,  od. 
That  neither  the  bankrupts  or  their  assignees  procured  such  certificate 
under  the  hands  of  the  minister  and  churchwardens  and  respectable 
inhabitants,  &c.,  as  required  in  the  printed  proposals. 

To  the  last  of  these  pleas,  the  plaintiffs  replied,  that  the  bankrupts 
as  soon  as  possible  after  the  loss,  narael}-,  on  the  1st  of  July,  1792, 
procured  and  delivered  to  the  company  such  certificate  as  is  required 
in  the  printed  proposals  under  the  hands  of  four  respectable  inhab- 
itants, &c.,  but  that  the  minister  and  churchwardens  wrongfully  refused 
to  sign  it  without  any  reasonable  or  probable  cause  for  so  doing. 

The  rejoinder  stated  that  the  minister  and  churchwardens  did  not 
wrongfully  refuse,  &c.  ;  on  which  issue  was  taken  in  the  surrejoinder. 

The  jur\'  found  all  the  issues  for  the  plaintiffs,  and  gave  a  verdict  for 
3,000/. 

The  defendant  below  removed  the  record  into  this  Court  by  writ  of 
error,  and  assigned  for  error  that  the  declaration,  the  replication,  and 
the  other  pleadings  of  the  plaintiffs  below,  were  not  sufl^cient  in  law 
to  maintain  the  action. 

This  case  was  twice  argued  in  this  Court,  the  first  time  in  last  EasteT 


SECT.    I.]  AVORSLEY   V.    WOOD.  679 

Term  b}-  Wood  for  the  plaintiff  in  error  and  Lambe  for  the  defendants, 
and  now  by  Laio  for  the  former  and  Gihhs  for  the  latter. 

LoKD  Kenyon,  C.  J.^  The  second  point  respecting  the  venire  de  novo  ^ 
is  now  for  the  first  time  started,  no  notice  having  been  taken  of  it  on 
the  first  argument  here,  or  on  the  motion  to  arrest  the  judgment  in  the 
Court  of  Common  Pleas  ;  if  there  appeared  to  be  any  ground  for  it,  we 
would  desire  to  have  the  case  farther  investigated  ;  but  it  seems  to  me 
to  have  no  foundation,  because  the  objection  that  the  procuring  of  the 
certificate  is  a  condition  precedent  is  as  applicable  to  the  second  as  to 
the  first  count  of  the  declaration. 

This  case  recjuires  our  serious  consideration,  because  the  Court  of 
Common  Pleas  have  already  given  their  opinion  on  it  in  favor  of  the 
plaintiff's  claim,  though  it  has  been  suggested  that  it  was  not  the  unani- 
mous opinion  of  that  Court.'  We  are  called  upon  in  this  action  to 
give  efl[ect  to  a  contract  made  between  these  parties  ;  and  if  from  the 
terais  of  it  we  discover  that  the}'  intended,  that  the  procuring  of  the 
cert'fiijate  by  tlie  assured  should  precede  their  right  to  recover,  and 
that  ic  has  not  been  procured,  we  are  bound  to  give  judgment  in  favor 
of  the  defendant  below.  These  insurance  companies,  who  enter  into 
very  extensive  contracts  of  this  kind,  are  liable  (as  we  but  too  fre- 
quently see  in  courts  of  justice)  to  great  fi-auds  and  impositions  ;  com- 
mon prudence,  therefore,  suggests  to  them  the  i)ropriet3'  of  taking  all 
possible  care  to  protect  them  from  frauds  when  they  make  these  con- 
tracts. The  Phoenix  Company  have  provided,  among  other  things, 
that  the  assured  should,  as  soon  as  possible  after  the  calamity  has  hap- 
pened, deliver  in  an  account  of  their  loss,  and  procure  a  certificate 
under  the  hands  of  the  minister  and  churchwardens,  and  of  some  repu- 
table householders  of  the  parish,  importing  that  they  knew  the  charac- 
ter and  circumstances  of  the  assured,  and  believed  that  they  had 
sustained  the  loss  without  any  kind  of  fraud.  That  this  is  a  prudent 
regulation,  this  very  case  is  sufficient  to  convince  us  ;  for  it  appears  on 
the  record,  that  soon  after  the  fire  the  assured  delivered  in  an  account 
of  their  loss,  which  they  said  amounted  to  7,000/.,  that  the}-  obtained  a 
certificate  tVom  some  of  the  reputable  inhabitants  that  the  loss  diil 
amount  to  that  sura,  and  that  the  jury  after  inquiring  into  all  the  cir- 
cum.stances  were  of  opinion  that  the  loss  did  not  exceed  3,000/.  ;  and 
yet  it  is  also  stated  that  the  minister  and  churchwardens,  who  refused 
to  certify  tliat  the}-  believed  that  the  loss  amounted  to  7,000/.,  wrong- 
fully and  without  any  reasonable  or  probable  cause  refused  to  sign  such 
certificate.     The  great  question  here  is,   WTiether  or  not  it  was  the 


^  AsHHURST,  Grose,  and  Lawrence,  JJ.,  delivered  concurring  opinions. 

2  It  was  argued  that  the  plaintiff  might  recover  on  the  second  count  where  the 
breach  assigned  was  refusal  to  arbitrate,  and  that  therefore  a  venire  de  novo  must 
issue  to  assess  damages  on  that  count. 

^  Mr.  J.  Hkath  differed  from  the  rest  of  the  Court  of  C.  B. 


680  WORSLEY   V.    WOOD,  [CHAP.   V. 

that  it  was  tbeir  intention  that  it  should  precede  payment.  "What  is  a 
condition  precedent,  or  what  a  condition  sul)seqnent,  is  well  expressed 
b}'  n\\  brother  Ashhmst  in  the  case  of  Hotham  v.  The  East  India 
Couij)any,  to  which  I  refer  in  general.  Ij]^,t^ieie  be  a_conditioD  prece-^ 
deijt_jt.i>_do_jui  inii)ossiitk^  thing,  the  obligation  becomes  singlej  but 
however  improbable  the  thing  may  be,  it  must  be  complied  with,  or  the 
right  which  was  to  attach  on  its  being  performed  does  not  vest.  If 
the  condition  be,  that  A.  shnll  enfeoff  B.,  and  A.  do  all  in  his  })0wer  to 
perform  the  condition,  and  H.  will  not  receive  livery  of  seisin,  yet  from 
the  time  of  Loid  Coke  to  the  present  moment,  it  has  not  been  doubted 
but  that  the  right  which  was  to  depend  on  the  perfoiTnance  of  that 
condition  did  not  arise.  In  the  case  of  Hesketh  «.  Gray,  which  has 
been  cited  as  a  determination  in  this  court,  there  was  also  an  applica- 
tion to  the  Great  iSeal.  at  the  time  wlien  Lord  Chief  Justice  Willes  was 
the  first  commissioner,  to  disj^ense  with  the  condition,  which  was,  that 
the  Bishop  of  Chichester  should  accept  the  resignation  of  a  living  ;  but 
it  was  held,  that  there  was  no  ground  for  a  court  of  equity  to  interfere. 

This  Court  also  held,  when  the  case  came  before  them,  that  it  was  a  con-  ^ 

dition  precedent,  and  must  be  performed.  ^- 

In  this  case,  however,  it  is  said  that,  though  the  minister  and  church-  .li(iA*^ 
wardens  did  not  certify,  some  of  the  inhabitants  did  certify,  and  ihaxJj^ 
that  was  sufficient,  it  being  a  performance  of  the  condition  cy  pres.  ^jjd 
But  I  confess,  I  do  not  see  how  the  terms  cy  pres  are  applicable  to  this! 
subject ;  the  argument  for  the  plaintiffs  below  goes  to  show  that  if  none 
of  the  inhabitants  of  this  parish  certified,  a  certificate  by  the  inhabi- 
tants of  the  next  or  of  any  other  parish  would  have  answered  the  pur- 
pose. But  the  assured  cannot  substitute  one  thing  for  another.  In  the 
case  of  Campbell  v.  French,  we  explained  the  grounds  of  this  doctrine, 
and  said  that  the  party  who  had  not  complied  with  the  condition  could 
not  substitute  other  terms  or  conditions  in  lieu  of  those  which  all  the 
parties  to  the  contract  had  originally  made.  So  here  it  was  competent 
to  the  insurance  office  to  make  the  stipulations  stated  in  their  printed 
proposals  ;  they  had  a  right  to  sa}'^  to  individuals  who  were  desirous  of 
being  insured,  "Knowing  how  liable  we  are  to  be  imposed  upon,  we 
will,  among  other  things,  require  that  the  minister,  churchwardens,  and 
some  of  the  reputable  inhabitants  of  your  parish  shall  certify  that  thej- 
believe  that  the  loss  happened  by  misfortune  and  without  fraud,  other- 
wise we  will  not  contract  with  j-ou  at  all."  If  the  assured  say  that  the 
minister  and  churchwardens  ma}'  obstinateh'  refuse  to  certify,  the 
insurers  answer,  "  We  will  not  stipulate  with  you  on  any  other  terms." 
Such  are  the  terms  on  which  I  understand  this  insurance  to  have  been 
effected  ;  and,  therefore,  I  am  clearly  of  opinion,  that  there  is  no  founda- 
tion for  the  action,  and  that  the  judgment  below  must  be  reversed.^ 

1  Prot.  Ins.  Co.  v.  Pliarson,  5  Ind.  417 ;  Johnson  v.  Phoenix  Ins.  Co.,  112  Mass.  49  ; 
Audette  v.  Union  St.  Joseph,  178  Mass.  11.3;  Lane  ;-.  St.  I^aul,  50  Minn.  227;  Logan 
V.  Commercial  Union  Ins.  Co.,  1.3  Can.  S.  C.  270,  arc.  See  also  Columbia  Ins.  Co.  u. 
L:n\Teuce,  10  Pet,  507  ;  Aetna  Ins.  Co.  v.  People's  Bank,  62  Fed.  Kep.  222;  Daniels  v. 


SECT.    I.] 


INSUKANCE  COMPANY   V.   KEABNEY. 


681 


LIVERPOOL  AND  LONDON  AND   GLOBE   INSURANCE 
COMPANY   V.   KEARNEY. 

Supreme  Court  of  the  United  States,   November  7,  1900- 
January  7,  1901. 

[Reported  in  180  Uniled  States,  132.] 

The  case  is  stated  in  the  opinion  of  the  court. 

Mr.  E.  S.  Quinton,  for  plaintiff  in  error. 

Mr.  A.  C.  Cruce  and  Mr.  W.  I.  Cruce,  for  defendants  in  error. 

Mr.  Justice  Harlan  delivered  the  opinion  of  the  court. 

This  action  was  brought  to  recover  the  amount  alleged  to  be  due  on 
two  policies  of  fire  insurance  issued  by  the  Liverpool  and  London  and 
Globe  Insurance  Company  —  one  dated  June  15,  1894,  for  $2,500,  and 
the  other  dated  February  11,  1895,  for  $1,000  —  each  polic}'  covering 
such  losses  as  might  be  sustained  by  the  insured  Kearney  &  Wyse,  in 
consequence  of  the  destruction  b}-  fire  of  their  stock  of  hardware  in  the 
town  of  Ardmore,  Indian  Territory. 

Each  policy  contained  the  following  clause,  called  the  iron-safe 
clause:  "The  assured  under  this  policy  hereby  covenants  and  agrees 
to  keep  a  set  of  books,  showing  a  complete  record  of  business  tran- 
sacted, including  all  purchases  and  sales,  both  for  cash  and  credit, 
together  with  the  last  inventory  of  said  business;  and  further  covenants 
and  agrees  to  keep  such  books  and  inventory  securely  locked  in  a  fire- 
proof safe  at  night,  and  at  all  times  when  the  store  mentioned  in  the 
within  policy  is  not  actually  open  for  business,  or  in  some  secure  place 
not  exposed  to  a  fire  which  would  destroy  the  house  where  such  busi- 
ness is  carried  on  ;  and,  in  case  of  loss,  the  assured  agrees  and  cove- 
nants to  produce  such  books  and  inventory,  ^Ild.4ll.tlieevejitof;^Jl^ 

faUuretODrodj^cethesame,  this  policy  shall  be  deemed  null     

and  no  sjii^^or^ai^jiori^^Oa^^nal^^  suc^ 

loss?^ 

TlTe"  insurance  company  insisted  in  its  defence  that  the  terms  and 
conditions  contained  in  this  clause  of  the  policies  had  not  been  kept 
and  performed  by  the  insured. 

There  was  a  verdict  and  judgment  in  favor  of  the  plaintiffs  in  the 
United  States  Court  for  tlie  Southern  District  of  the  Indian  Territory, 
and  that  judgment  was  affirmed  in  the  United  States  Court  of  Appeals 
lor  that  Territory. 

Equitable  Fire  Ins.  Co.,  50  Conn.  5.51 ;  Leadbetter  y.  Etna  Ins.  Co.,  13  Me.  265  ;  Kellv 
t;.  Sun  Fire  Office,  141  Pa.  10 ;  Osewalt  v.  Hartford  Fire  Ins.  Co.,  175  Pa.  427. 

O'Neill  V.  Massachusetts  Benefit  A.ssoc,  63  Hun,  292,  143  N.  Y.  73  ;  Lang  v.  Eagle 
Fire  Co.,  12  N.  Y.  A  pp.  l)iv.  39,  46,  contra. 

See  also  American  Central  Ins.  Co.  v.  Rothchild,  82  111.  166;  German  Am.  Ins.  Co. 
V.  Norris,  100  Ky.  29;  Home  Fire  Ina.  Co.  v.  Hammang,  44  Neb.  566,  576;  Schmurr 
V.  State  Ins.  Co.,  30  Oreg.  29. 


682  INSURANCE   COMPANY   V.   KEARNEY.  [CHAP.    V. 

The  insurance  company  sued  out  a  writ  of  error  to  the  United  States 
Circuit  Court  of  Appeals  for  the  Eighth  Circuit,  and  that  court  affirmed 
the  judgment.     94  Fed.  Rep.  314. 

Tlie  controlling  facts  are  thus  (and  we  think  correctly)  stated  in  the 
opinion  of  Judge  Thayer,  speaking  for  the  court  below  :  ''  On  the  night 
of  April  18,  1895,  between  the  hours  of  one  and  three  a.m.,  a  fire 
accidentally  broke  out  in  a  livery  stable  in  the  town  of  Ardmore,  which 
was  about  three  hundred  yards  distant  from  the  plaintiffs'  place  of 
business.  Efforts  to  arrest  the  progress  of  the  conflagration  failed, 
and  when  it  had  approached  so  near  to  the  plaintiff's'  place  of  business 
that  the  windows  of  their  store  were  cracking  from  the  heat  and  the 
building  was  about  to  take  fire,  one  of  the  plaintiff's  entered  the 
building  for  the  purpose  of  removing  the  books  of  the  firm  to  a  safer 
place,  thinking  that  it  would  be  better  to  remove  them  than  to  take 
the  chances  of  their  being  destroyed  by  fire.  He  opened  an  iron  safe 
in  the  store,  in  which  they  had  been  deposited  for  the  night,  which 
was  called  a  fireproof  safe,  and  took  them  therefrom,  and  to  his  resi- 
dence, some  distance  away.  The  books  consisted  of  a  ledger,  a  cash 
book,  a  day  book  or  blotter,  and  a  small  paper-covered  book  containing 
an  inventory  that  the  firm  had  taken  of  their  stock  on  or  about  Janu- 
ary 1,  1895.  In  the  hurry  and  confusion  incident  to  the  removal  of 
the  books,  the  inventory  was  either  left  in  the  safe  and  was  destroyed, 
or  was  otherwise  lost,  and  could  not  be  produced  after  the  fire.  The 
other  books,  however,  were  saved,  and  were  exhibited  to  the  insurer 
after  the  fire,  and  were  subsequentl}'  produced  as  exhibits  on  the  trial. 
Theio  was  neither  plea  nor  proof  that  the  loss  of  the  inventory  was 
due  to  fraud  or  bad  faith  on  the  part  of  plaintiff's,  or  either  of  them. 
The  trial  judge  charged  the  jury  that  the  set  of  books  which  had  been 
kept  and  which  were  produced  on  the  trial  '  were  substantially  in  com- 
pliance with  the  terms  of  the  policy  upon  that  subject,'  and  no  excep- 
tion was  taken  by  the  defendant  to  this  part  of  the  charge.'^ 

It  was  also  said  in  the  same  opinion:  "The  books,  though  used  at 
the  trial  as  exhibits,  do  not  form  a  part  of  the  record.  For  these 
reasons  no  question  arises  as  to  the  sufficiency  of  the  set  of  books 
that  was  kept  which  we  are  called  upon  to  consider.  It  must  be  taken 
for  granted  that  it  was  a  proper  set  of  books,  as  the  trial  court  held. 
The  onl}'  substantial  ground  for  complaint  seems  to  be  that  the  in- 
ventory was  not  produced." 

The  argument  in  behalf  of  the  defendant  assumes  that  the  insurance 
company  is  entitled  to  a  literal  interpretation  of  the  words  of  the  policies. 
But  the  rules  established  for  the  construction  of  written  instruments 
apply  to  contracts  of  insurance  equally  with  other  contracts.  It  was  well 
said  b^'  Nelson,  C.  J.,  in  Turley  v.  North  American  Fire  Insurance 
Co.,  25  Wend.  374,  377,  referring  to  a  condition  of  a  policy  of  insurance 
requiring  the  insured,  if  damage  by  fire  was  sustained,  to  produce  a 
certificate  under  the  hand  and  seal  of  the  magistrate  or  notarv  public 
most  contiguous  to  the  place  of  the  fire  setting  forth  certain  facts  in 


SECT. 


I-] 


INSURANCE   C03IPANY   V.    KEARNEY. 


683 


regard  to  the  fire  and  the  insured,  that  "  this  clause  of  the  contract  of 
insurance  is  to  receive  a  reasonable  interpretation ;  its  intent  and  sub- 
stance, as  derived  from  the  language  used,  should  be  regarded.  There 
is  no  more  reason  for  claiming  a  strict  literal  compliance  with  its  terms 
than  in  ordinary  contracts.  Full  legal  effect  should  always  be  given 
to  it  for  the  purpose  of  guarding  the  company  against  fraud  or  im- 
position. Beyond  this,  we  would  be  sacrificing  substance  to  form  — 
following  words  rather  than  ideas." 

To  the  general  rule  there  is  an  apparent  exception  in  the  case  of 
contracts  of  insurance,  namely,  that  where  a  policy  of  insurance 
is  so  framed  as  to  leave  room  for  two  constructions,  the  words  used 
should  be  interpreted  most  strongl}-  against  the  insurer.  This  excep- 
tion rests  upon  the  ground  that  the  company's  attorney's,  officers,  or 
agents  prepared  the  polic}",  and  it  is  its  language  that  must  be  inter- 
preted. National  Bank  v.  Insurance  Co.,  95  U.  S.  673,  678-9 ; 
Moulor  V.  American  Life  Ins.   Co.,  Ill  U.  S.  335,  341. 

Turning  now  to  the  words  of  the  policies  in  suit,  what  is  the  better 
and  more  reasonable  interpretation  of  those  provisions  so  far  as  they 
relate  to  the  issues  in  this  case?  The  covenant  and  agreement  "  to 
kee^j^  setj^lj^oj^s.  sho^ng  a  comt^  of^  busii^s^transticted, 

including  all  mu'c^ases  ancT^sg^esTboth  for  cash  ajid  credit^ogether 
with  gTe  litstjaveutorvLof  sa^d  baigin£^s^  should  notbeinterpreted  to 
mean  such  l)ooks  as  would  be  kept  by  an  expert  bookkeeper  or  account- 
ant in  a  large  business  house  in  a  great  city.  That  provision  is  satisfied 
if  the  books  kept  were  such  as  would  fairly  show,  to  a  man  of  ordinary 
intelligence,  "  all  purchases  and  sales,  both  for  cash  and  credit." 
There  is  no  reason  to  suppose  that  the  books  of  the  plaintiff  did  noti 
meet  such  a  requirement. 

That  of  which  the  company  most  complains  is  that  the  insured  did 
not  produce  the  last  inventory  of  their  business,  and  removed  the 
books  and  inventory  from  the  fireproof  safe  in  which  they  had  been 
placed  the  night  of  the  fire.  It  will  be  observed  that  the  insured  had 
tlie  right  to  keep  the  books  and  inventory  either  in  a  fireproof  safe  or 
in  some  secure  place  not  exposed  to  a  fire  that  would  destroy  the  house 
in  which  their  business  was  conducted.  But  was  it  intended  by  the 
parties  that  the  policy  should  become  void  unless  the  fireproof  safe  was 
one  that  was  absolutely  sufficient  against  every  fire  that  might  occur? 
We  think  not.  If  the  safe  was  such  as  was  coramonlv  used,  and  such 
as,  in  the  judgment  of  prudent  men  in  the  locality  of  tlie  propert}' 
insured,  was  sufficient,  that  was  enough  within  the  fair  meaning  of  the 
words  of  the  polic}'.  It  cannot  be  supposed  that  more  was  intended. 
If  the  compan}'  contemplated  the  use  of  a  safe  perfect  in  all  respects 
and  capable  of  withstanding  any  fire  however  extensive  and  fierce,  it 
should  have  used  words  expressing  that  thought. 

Nor  do  the  words  "  or  in  some  secure  place  not  exposed  to  a  fire 
which  would  destroy  the  house  where  such  business  is  carried  on" 
necessarily  mean  that  the  place  must  be  absolutely  secure  against  any 


684  INSURANCE   COMPANY   V.   KEARNEY.  [CHAP.    V. 

fire  that  would  destro}'  such  house.  If,  in  selecting  a  place  in  which 
to  keep  their  books  and  last  inventory,  the  insured  acted  in  good  faith 
and  with  such  care  as  prudent  men  ought  to  exercise  under  like 
circumstances,  it  could  not  be  reasonably  said  that  the  terms  of  the 
policy  relating  to  that  matter  were  violated.  Indeed,  upon  the  facts 
stated,  the  plaintiffs  were  under  a  duty  to  the  insurance  company  to 
remove  their  books  and  inventory  from  the  iron  safe,  and  thereb}' 
avoid  the  possibility  of  their  being  destroyed  in  the  fire  that  was  sweep- 
ing towards  their  store,  provided  the  circimistances  reasonably  in- 
dicated that  such  a  course  on  their  part  would  more  certainly  protect 
the  books  and  inventor^'  from  destruction  than  to  allow  them  to  remain 
in  the  safe.  If  the}'  believed,  from  the  circumstances,  that  the  books 
and  inventory  would  be  destroyed  b}-  the  fire  if  left  in  the  safe,  and 
if,  under  such  circumstances,  the}'  had  not  removed  them  to  some  other 
place  and  the  books  or  inventor}'  had  been  burned  while  in  the  safe, 
the  company  might  well  have  claimed  that  the  inability  of  the  insured 
to  produce  the  books  and  inventory  was  the  result  of  design  or 
negligence,  and  precluded  any  recovery  upon  the  policies.  We  are  of 
opinion  that  the  failure  to  produce  the  books  and  inventory,  referred 
to  in  the  policy,  means  a  failure  to  produce  them  if  they  are  in  existence 
when  called  for,  or  if  they  have  been  lost  or  destroyed  by  the  fault, 
negligence,  or  design  of  the  insured.  Under  any  other  interpretation 
of  the  policies,  the  insured  could  not  recover  if  the  books  and  inventory 
had  been  stolen,  or  had  been  destroyed  in  some  other  manner  than  by 
fire,  although  they  had  been  placed  "  in  some  secure  place  not  exposed 
to  a  fire"  that  would  reach  the  store.  If  the  plaintiffs  had  the  right, 
under  the  terms  of  the  policy,  as  undoubtedly  they  had,  to  remove 
their  books  and  inventory  from  the  safe  to  some  secure  place  not 
exposed  to  a  fire  which  might  destroy  the  building  in  which  they 
carried  on  business,  surely  it  was  never  contemplated  that  they  should 
lose  the  benefit  of  the  policies  if,  in  so  removing  their  books  and 
inventory,  they  were  lost  or  destroyed,  they  using  such  care  on  the 
occasion  as  a  prudent  man,  acting  in  good  faith,  would  exercise.  A 
literal  interpretation  of  the  contracts  of  insurance  might  sustain  a 
contrary  view,  but  the  law  does  not  require  such  an  interpretation. 
In  so  holding  the  court  does  not  make  for  the  parties  a  contract  which 
they  did  not  make  for  themselves.  It  only  interprets  the  contract  so 
as  to  do  no  violence  to  the  words  used  and  yet  to  meet  the  ends  of 
justice. 

We  perceive  no  error  in  the  view  taken  by  the  court  below  ;  and 
having  noticed  the  only  questions  that  need  to  be  examined,  its 
Tudgment  is 

Affirmed. 


SECT.    I.]      LIFE   INSURANCE   ASSOCIATION    V.    WAGNER.  685 


THE  GLOBE  MUTUAL   LIFE  INSURANCE  ASSOCIATION 
OF   CHICAGO   V.    DORA  WAGNER. 

Illinois  Supreme  Court,  December  20,  1900. 

[Reported  in  188  Illinois,  133.] 

Action  by  the  appellee  upon  a  policy  of  insurance  on  the  life  of  her 
son,  Richard  Wagner.  The  plaintiff  recovered  judgment  and  the  appel- 
lant appealed  successively  to  the  Court  of  Appeals  and  to  this  court. 
Furtiier  facts  appear  in  the  opinion. 

Hoyne^  0'  Connor  <&  Hoyne,  for  appellant. 

Francis  T.  Colby.,  for  appellee. 

Mr.  Justice  Wilkin  delivered  the  opinion  of  the  court. 

The  chief  ground  urged  b}'  appellant  for  a  reversal  of  the  judgment 
of  the  Apellate  Court  is  the  falsit}'  of  the  answer  to  one  of  the  questions 
appearing  in  the  medical  examination  of  the  insured.  On  the  back  of 
the  application  made  b}'  appellee,  in  what  purports  to  be  the  medical 
examination  of  the  insured,  this  question  and  answer  appear:  "■  Q. — 
How  many  brothers  dead ?  Ans.  —  None."  The  medical  examination 
is  certified  to  by  the  medical  examiner,  as  follows : 

"  I  certify  that  I  have,  this  7th  day  of  October,  1895,  made  a  personal  ex- 
amination of  the  above  named  person,  (Richard  Wagner,)  and  that  the  above 
answers  are  in  my  own  handwriting,  and  that  the  signature  of  the  applicant 
or  person  examined  was  written  in  my  presence. 

"M.  J.  McKenna,  ]\[.D." 

Preceding  the  medical  examiner's  certificate,  and  immediately  at  the 
end  of  the  series  of  questions  and  answers  referred  to  in  the  certificate, 
of  which  the  quoted  question  is  one,  appears  the  following  language,  to 
which  is  affixed  the  signature  of  Richard  Wagner,  the  insured:  "I 
hereby  declare  and  warrant  that  the  answers  to  the  above  questions, 
and  the  statements  made  in  the  application  on  the  other  side  hereof, 
are  true,  and  were  written  by  me  or  h\  my  proper  agent,  and  that  said 
answei-s  and  statements,  together  with  this  warranty,  shall  form  the 
basis  of  any  contract  of  insurance  that  may  be  entered  into  between  me 
and  the  Globe  Mutual  Insurance  Association,  and  that  if  a  contract  of 
insurance  is  issued  it  shall  not  be  binding  on  the  company  unless,  upon 
its  date  and  delivery,  I  shall  be  in  sound  health."  On  the  front  side 
of  the  sheet,  on  the  back  of  which  is  the  medical  examination  and  state- 
ment signed,  as  above,  by  the  insured,  is  the  application  by  appellee 
for  the  policy,  and  over  her  signature  appears  the  following  :  "  I  hereby 
make  application  for  the  policy  described  above,  and  as  an  inducement 
to  the  association  to  issue  a  policy,  and  as  a  consideration  therefor,  make 
the  agreement  as  to  agency,  and  all  other  agreements,  and  warranties 
contained  in  the  medical  examination,  as  fully  as  if  I  had  signed  the 
same." 


686  LIFE   INSURANCE   ASSOCIATION   V.   WAGNER.       [CHAF.    V, 

It  appears  from  the  evidence  that  a  brother  of  the  insured  died  in 
London,  England,  more  than  four  years  prior  to  the  date  of  the  appli- 
cation for  insurance  in  this  case,  but  there  is  no  evidence  tending  to 
show  that  the  insured  ever  knew  of  his  brother's  death.  Appellant  as- 
serts, however,  that,  whether  he  knew  of  it  or  not,  the  statement  that 
none  of  his  brothers  were  dead  is  a  warranty,  and  being  untrue,  avoids 
the  policv.  Appellee  contends  that  the  statement,  though  false,  is  not 
a  warranty,  but  a  mere  representation,  which,  unless  material,  would 
not  avoid  the  polic}'. 

In  the  absence  of  explicit,  unequivocal  stipulations  requiring  such  an 
interpretation,  it  should  not  be  inferred  that  the  insured  or  the  appellee 
took  a  life  poUcy  with  the  distinct  understanding  that  it  should  be  void 
if  an}'  statements  made  in  the  medical  examination  should  be  false, 
whether  the  insui'ed  was  conscious  of  the  falsity  thereof  or  not.  (Moulor 
V.  American  Life  Ins.  Co.,  Ill  U.  S.  335.)  Whether  or  not  the  deceased 
knew  of  the  death  of  his  brother  at  the  time  of  the  application  for  in- 
surance was  a  question  for  the  jur\',  and  no  evidence  of  such  knowledge 
appears  in  the  record.  To  hold  that,  as  a  precedent  to  any  binding 
contract,  he  should  guarantee  absolutely  that  none  of  his  brothers  were 
dead  would  be  unreasonable,  in  the  absence  of  a  more  explicit  stipula- 
tion than  here  appears.  It  not  infrequently  happens  that  a  man  loses ^ 
trace  of  all  or  a  part  of  his  relations,  and  to  hold  him  to  absolutely 
guarantee  that  thej'  were  living,  in  order  that  he  might  obtain  insur- 
ance, would  sometimes  be  to  require  an  impossibility,  and  would  be 
almost  absurd. 

What  is  said  in  Moulor  v.  American  Life  Ins.  Co.,  supra,  is  peculiarly 
applicable  to  the  case  at  bar.  In  that  case  the  insured  made  a  false 
statement  as  to  his  having  had  certain  diseases,  and  "  warranted  that 
the  above  are  fair  and  true  answers."  The  court  say  :  "  The  entire 
argument  in  behalf  of  the  compan}-  proceeds  upon  a  too  literal  inter- 
pretation of  those  classes  in  the  policy  and  application  which  declare 
the  contract  null  and  void  if  the  answers  of  the  insured  to  the  ques- 
tions propounded  to  him  were  in  any  respect  untrue.  What  was  meant 
by  '  true  '  and  '  untrue '  answers?  In  one  sense,  that  only  is  true  which  w 
is  conformable  to  the  actual  state  of  things.  In  that  sense  a  statement  i 
is  untrue  which  does  not  express  things  exactly  as  they  are,  but  in 
another  and  broader  sense,  the  word  '  true '  is  often  used  as  a  synonym 
of  honest;  sincere;  not  fraudulent.  Looking  at  all  the  clauses  in  th^^ 
application,  in  connection  with  the  polic}',  it  is  reasonably  clear  —  cer-^ 
tainly  the  contraiy  cannot  be  confidently  asserted  —  that  what  the  com- 
pany required  of  the  applicant  as  a  condition  precedent  to  an}'  binding 
contract  was,  that  he  would  observe  the  utmost  good  faith  towards  it, 
and  make  full,  direct,  and  honest  answers  to  all  questions,  without  eva- 
sion or  fraud,  and  without  suppression,  misrepresentation,  or  conceal- 
ment of  facts  with  which  the  company  ought  to  be  made  acquainted, 
and  that  by  so  doing,  and  onl}'  b}^  so  doing,  would  he  be  deemed  to 
have  made  fair  and  true  answers."     In  that  case  the  untrue  statements 


SECT.   T.]  SHADFORTH   V.    HIGGIN.  687 

-«vere  held  to  be  representations,  and  not  warranties,  and  we  think,  on 
the  same  reasoning,  the  answer  here  in  question  should  be  so  held,  and 
in  the  absence  of  proof  by  the  companj-  of  fraud  or  intentional  misstate- 
ment on  the  part  of  the  insured  the  policy  was  not  rendered  invalid 
merel}'  because  the  answer  proved  to  be  false. 

We  are  satisfied  the  court  below  committed  no  reversible  error,  and 
the  judgment  of  that  court  will  be  affirmed. 

Judgment  affirmed. 


SHADFORTH  v.  HIGGIN. 
At  Nisi  Prius,  coram  Lord  Ellenborough,  Hilary  Term,  1813. 

{Reported  in  3  Campbell,  385.] 

Assumpsit  uyjoc  the  following  agreement  signed  by  the  plaintiff  and 
defendant :  — 

''James  Shadforth,  part-owner  of  the  ship  Fanny,  of  300  tons, 
coppered  and  armed,  agrees  to  despatch  said  vessel  immediately  ir 
ballast  direct  to  Jamaica,  and,  on  her  arrival  at  Rio  Nova  Ba}',  Salt 
Gut,  and  St.  Ann's,  receive  a  full  and  complete  cargo  of  produce, 
consisting  of  sugar,  rimi,  coffee,  and  pimento.  In  return  Messrs. 
Higgin  &  Co.  agree  to  proAnde  a  cargo  at  the  above  shipping  places, 
to  be  taken  on  board  in  the  usual  manner,  in  time  for  July  convoy, 
provided  she  arrives  out  and  ready  b}'  the  25th  of  June,  and  the  freight 
to  De  at  the  current  rate  as  given  to  other  vessels^  loading  at  the  same 
time  and  same  ports." 

The  declaration  alleged  that  the  plaintiff  did  immediately  despatch 
the  vessel  in  ballast  to  Jamaica,  and  that,  on  her  anival  at  Rio  Nova 
Bay,  she  was  afterwards,  to  wit,  on  the  3d  of  July,  and  from  thence  for 
a  long  space  of  time,  to  wit,  for  the  space  of  IBTee  months  from  thence 
next  ensuing,  ready  to  receive  at  Rio  Nova  Bay,  Salt  Gut,  and  St. 
Ann's,  aforesaid,  a  full  and  complete  cargo  of  produce,  according  to  the 
form  and  effect  of  the  said  agreement ;  yet  that  the  defendant  did  not 
nor  would  provide  a  cargo  for  the  said  vessel  at  the  above  shipping 
places,  or  any  or  either  of  them,  according  to  the  form  and  effect  of 
the  said  agreement,  whereby  the  said  ship  was  obliged  to  return  from 
Jamaica  without  any  cargo  being  loaded  on  board  thereof. 

The  ship  in  point  of  fact  did  not  reach  Jamaica  till  the  3d  of  July  ; 
and  the  question  was,  whether  under  these  circumstances  the  defendant 
was  answerable  for  having  failed  to  furnish  her  with  a  full  cargo. 

Garrow,  S.  G.,  for  the  plaintiff,  contended  that  the  defendant  was 
bound  to  furnish  a  full  cargo  for  the  ship  at  all  events.  Provided 
she  airived  out  and  was  ready  b}*  the  25th  of  June,  this  was  to  be  done 
in  time  to  enable  her  to  sail  with  the  Julv  convov.     The  condition  of 


633  MORGAN    V.    BIKNIE.  [CHAP.    V. 

her  arriving  by  25tli  June  only  applied  to  the  time  of  her  departure  on 
the  homeward  vo^'age.  If  by  any  accident  her  arrival  was  delayed 
beyond  the  daj-  specified,  she  was  still  entitled  to  a  cargo  in  a  reason 
able  time,  as  if  the  proviso  and  the  mention  of  the  July  convoy  had  not 
been  inti-oduced  into  the  agreement.  It  could  hardly  be  meant,  that 
where  the  owner  was  absolutely  bound  to  despatch  his  ship  to  Jamaica, 
if  she  an-ived  a  day  later  than  was  expected,  the  fi-eighter  might  send 
her  home  emptj-. 

Lord  Ellenborough.  I  think  the  arrival  of  the  ship  by  the  25th 
June  was  a  condition  precedent.  The  freighter  might  know  that,  if  she 
amved  by  that  day,  he  could  easily  provide  a  cargo  for  her ;  but  that 
afterwards  it  might  be  impossible.  He  might  have  had  goods  of  his 
own,  which  it  was  essentially  necessary  should  be  shipped  b}-  that  day, 
and  which  he  was  therefore  compelled  to  load  on  board  another  vessel. 
It  would  be  a  great  hardship  upon  the  freighter,  if  he  were  bound  to 
provide  a  freight  for  a  vessel  which  arrives  at  a  season  of  the  year  when 
there  is  no  produce  ready  for  shipping  in  the  island.  If  the  freigliter  is 
lia])le,  although  the  ship  does  not  arrive  till  a  week  after  the  day  agreed 
upon,  where  is  the  line  to  be  drawn?  I  think  the  fair  inteq^retation  of 
the  instrument  is  that,  unless  the  ship  arrived  by  the  25th  June,  the 
defendant's  liability  was  to  be  at  an  end. 

The  plaintiff  likewise  failed  in  establishing  another  agi'eement  de- 
clared upon  for  the  loading  of  the  ship,  and  submitted  to  be  nonsuited.^ 


MORGAN  V.   BIRNIE. 
In  the  Common  Pleas,  April  17,  1833. 

[Jtepwted  in  9  Bingham,  072.] 

This  was  an  action  on  a  builder's  contract,  by  which  it  was  stipu- 
lated, among  other  things,  that  all  the  proposed  erections  should  be 
done  in  a  good  and  workmanlike  manner,  and  with  good,  sound,  and 
well-seasoned  materials,  and  be  completed  to  the  reasonable  satisfaction 
of  A.  K.  Clayton,  or  other  the  architect  for  the  time  being  of  the  defendant, 
his  executors  or  administrators,  on  or  before  the  twenty-ninth  day  of 
October  next  ensuing  the  date  thereof,  or  such  further  day  as  the  said 
A.  B.  Cla\-ton,  or  such  other  architect,  and  the  said  plaintiff  should 
mutually  agree  upon.  It  was  further  provided,  that  no  additions  or 
alterations  should  be   admitted  unless  directed  by  the  defendant,  his 

1  Smith  V.  Dart,  U  Q.  B.  D.  105  ;  The  Austin  Friars,  71  L.  T.  27,  ace. 

In  tlie  Austin  Friars,  supra,  the  charterers  had  the  option  of  cancelling  "  if  the 
steamer  does  not  arrive  at  port  of  loading,  and  he  ready  to  load  on  or  before  midnight 
of  10th  of  October."  The  vessel  arrived  at  11  p.m.  on  that  day,  but  no  one  could 
leave  or  visit  the  ship  until  the  health  officer  had  inspected  her  ou  the  following 
morning.     It  was  held  that  the  charterers  were  justified  iu  refusing  a  cargo. 


SECT,    I.]  MORGAN   V.   BIRNIE.  689 

executors  or  administrators,  or  his  or  their  sun-eyoi,  in  writing;  nor 
should  auj'  additions  to  or  alterations  of  the  works  thereby  contracted 
for,  and  contained  in  the  particulars  therein  specified,  vitiate  or  vacate 
the  contract  thereb}'  made,  but  the  price  or  allowance  to  be  made  in 
resi)ect  of  any  agreed  additions  or  alterations  should  be  added  to  or 
deducted  from  the  money's  that  should  become  payable  by  virtue  of  the 
said  memorandum  of  agreement  as  the  case  might  require,  such  price 
or  allowance  being  first  estimated  or  settled  by  the  survej'or  or  archi- 
tect of  the  said  defendant,  who  should  be  sole  arbitrator  in  sottling 
such  price  or  allowance,  and  all  disputes  that  should  or  might  arise  in 
or  about  the  premises :  And  the  defendant  thereb}'  promised  and 
agi'eed,  in  consideration  of  the  buildings  and  works  to  be  done  and 
executed  by  the  said  plaintifl^",  in  manner  in  the  said  memorandum  of 
agreement  mentioned,  that  the  defendant  would  pay,  or  cause  to  be 
paid,  to  the  plaiutifiT,  the  sum  of  1,250Z.  in  manner  following,  that  is  to 
say,  that  he  would  pay  or  cause  to  be  paid  such  a  sum  of  money  as 
would  be  equal  to  three-fourth  parts  of  the  price  of  the  works  thereby 
contracted  for,  which  should  have  been  executed  and  performed  accord- 
ing to  the  true  intent  and  meaning  of  the  said  memorandum  of  agree- 
ment, upon  receiving  a  certificate  in  writing  signed  b}'  the  said  A.  B. 
Cla^'ton,  or  other  the  architect  of  the  defendant,  testifying  that  the 
flooring-joists  of  the  first  story  of  the  said  dwelling-house  had  been  ac- 
tually- laid,  and  his  approval  of  the  works  so  executed  ;  such  further  sum 
of  monej'  as  would  be  equal  to  three-fourth  parts  of  the  price  or  value 
of  the  further  works  that  should  have  been  done  subsequently  to  the 
date  of  the  architect's  said  certificate,  upon  the  completion  of  the  carcase 
of  the  dv.elling-house  ;  and  the  balance  or  sura  which  should  be  found 
due  to  the  })laintiff,  after  deducting  the  two  previous  payments,  witliin 
two  calendar  months  after  receiving  the  said  architect's  certificate  that 
the  whole  of  the  liuildings  and  works  thereby  contracted  for  had  been 
executed  and  completed  to  his  satisfaction. 

The  work  having  l)een  completed,  the  plaintiff  sought  b}'  this  action 
to  recover  his  charges  for  some  additional  work  not  contained  in  the 
original  contract. 

At  the  trial  it  appeared  that  Mr.  Clayton,  the  architect,  had  examined 
and  approved  of  the  plaintifii's  charges  for  the  buildings  mentioned  in 
the  agreement,  and  had  written  the  following  letter  to  the  defendant, 
more  than  two  months  before  the  action  :  — 

With  this  you  will  receive  ^Ir.  Morgan's  account.  IMy  private  statement, 
showing  the  variations  of  prices  and  qualities,  shall  be  copied  and  forwarded 
to  you.  As  regards  to  when  and  where  executed,  ray  only  data  exist  in  my 
'neasuring  book,  which  shall  be  open  for  your  inspection  at  any  time  at  my 
office.  I  also  forward  you  the  drawings  marked  6  and  7,  and  the  original 
elevation  and  plan  submitted  to  the  commissioners  of  woods  and  forests. 

I  remain,  &c.  A.  B.  Clayton 

March  24,  18:i2. 

VOL.   I. i4 


690  MORGAN    V.    BIRNIE.  [CHAP.    V. 

Tills  lettor  containcHl  an  account,  beaded,  "  Final  statement  of  extraf^ 
and  omissions  of  the  carcase  of  a  house  for  George  Birnie,  Esq.,  by  T. 
Morgan,  builder." 

A  lettor  was  also  put  in,  addressed  to  Cla^'ton  bj'  the  defendant, 
April  4,  1832,  in  which  he  asked  for  Clayton's  private  statement  o( 
prices  and  quantities;  expressed  himself  anxious  to  have  the  mattoi 
speedil}'  settled,  and  made  no  objection  on  the  ground  of  not  liaving 
received  a  certificate.  But  as  it  did  not  appear  that  ^Ir.  Clayton  had 
ever  gi\<;u  any  certificate  of  his  satisfaction  as  U^  the  mode  in  wiiifli  the 
wuj  k  haci  been  executed,  Tindal,  C.  J.,  directed  a  nonsuit,  on  the  groun<.l 
thai  the  delivery  of  such  a  certificate  was  a  condition  precedent  to  the 
plaintiff's  right  of  action. 

Spaiikie,  Seijt.,  now  moved  to  set  aside  this  nonsuit  on  the  ground 
that  the  agreement  did  not  require  the  certificate  touching  the  additions 
to  be  in  writing ;  and  that  Mr.  Cla3"ton's  allowance  of  the  i)laintiir's 
charges  must  be  deemed  an  implied  certificate,  for  he  could  not  allow 
the  charges  to  be  correct  without  implying  thereby  that  the  building  had 
been  executed  to  his  satisfaction.  Besides,  it  might  be  doubtful  whether 
any  certificate  were  requisite  with  respect  to  charges  for  additional  work  ; 
the  certificate  Avas  to  apply  onl}'  to  the  building  as  originally  contracted 
for,  and  the  defendant  had  never  objected  to  pay  on  the  gi'ound  that  a 
proper  certificate  had  not  been  rendered. 

Tindal,  C.  J.  ^was  of  opinion  at  thp.  trifll.  and  am  still  of  opinion, 
that  the  production  of  a  certificate  from  Mr.  Clayton  was  a  condition 
[irrf'odfmt  itjt^jiic  brin^'in'j  this  action.  The  agreement  stipulates,  that 
the  price  of  adcRtlUiiM  ui"  aUUiations  slibutd  be  added  to  the  sum  con- 
tracted for  by  the  agreement,  such  price  being  first  settled  b}-  the  archi- 
tect of  the  defendant,  who  should  be  sole  arbitrator  in  settling  such 
price,  and  all  disputes  that  should  arise  about  the  premises.  ThcD 
follows  the  stipulation  for  pa3'ment  in  proportion  to  the  work  done  at 
two  diflerent  periods  upon  receiving  a  certificate  in  writing  of  Mr.  Cla}'- 
ton's  approval,  and  for  pa^Tuent  of  the  balance  of  the  whole  within  two 
calendar  months  after  receiving  the  said  architect's  certificate  that  the 
whole  of  the  buildings  contracted  for  had  been  executed  to  his  satisfac- 
tion. That  appears  to  involve  not  onlv  the  original  but  the  additional 
or  extra  works.  Unless  the  letter  and  delivery  of  the  plaintiff's  account, 
ami  the  checking  that  account  by  Clayton,  amount  to  a  certificate,  no 
certificate  has  been  given.  It  appears  to  me,  that  the  effect  of  a  certifi- 
cate would  be  altogether  different ;  applying  to  the  manner  in  which  the 
work  has  been  done,  while  the  checking  the  accounts  applies  only  to  the 
propriety  of  the  charges. 

The  rest  of  the  Court  concurring,  the  rule  was  Refused} 

1  De  Woniits  v.  ML-llicr.  L.  K.  1(5  Eq.  f>&4  ;  Hudson  c.  McCartney,  .%  Wis.  831; 
Udiiuiater  v.  Patty,  35  Wis.  216,  accord.     Compare  Wyckoff  v.  Meyers,  44  N.  Y.  148 


SECT.   I.]  CLARKE   V.   WATSON.  691 


CLARKE,  Assignee  of  the  Estate  and  Effects  of  Francis  Atbu^ 
a  Bankrupt^  and  Others  v.  WATSON  and  Another. 

In  the  Common  Pleas,  January  25,  1865. 

[Reported  in  18  Common  Bench  Reports,  New  Series,  278.] 

The  fii'st  count  of  the  declaration  stated,  that  theretofore  and  befoi« 
the  said  Francis  Ayres  became  bankrupt,  to  wit,  on  the  9th  of  October, 
1862,  by  an  agreement  in  writing  then  made  and  entered  into  between 
the  said  Francis  Ayres,  William  Mallows,  and  William  Johnson,  therein 
called  "the  contractors,"  of  the  one  part,  and  the  defendants  of  the 
other  part,  the  said  contractors  agi'eed  with  the  defendants  to  do  cer- 
tain works  therein  mentioned  in  conformity  with  certain  plans,  di'aw- 
ings,  and  sections  therein  mentioned ;  and  also  in  conformity  with 
certain  specifications  therein  mentioned,  as  well  as  to  the  satisfaction 
and  approval  of  the  engipeer  to  a  certain  board  of  health  for  the  time, 
should  such  be  found  necessary,  at  or  for  312/.  15«.,  to  be  paid  as  follows  : 
166/.  7s.  6c?.  on  production  b}'  the  contractors  to  the  defendants,  or  one 
of  them,  of  the  certificate  of  William  Lambert,  or  other  the  survej'or 
for  the  time  of  the  defendants,  that  they,  the  contractors,  had  duly  and 
efticientl}-  performed  and  completed  such  portion  of  the  work  as  accord- 
ing to  the  judgment  of  the  said  survej'or  should  be  not  less  than  threo- 
fourth  parts  thereof  in  extent  and  value  ;  78/.  3s.  9d.  on  the  production 
by  the  said  contractors  to  the  defendants,  or  to  one  of  them,  of  the  cer- 
tificate of  the  said  surveyor  as  aforesaid,  that  the  whole  of  the  works 
mentioned  and  refeiTcd  to  in  the  said  plans,  drawings,  and  specifica- 
tions, had  been  duly  and  effieientl}'  performed  and  completely  finished 
to  his  satisfaction,  and  also  to  the  satisfaction  of  the  said  engineer  for 
the  time  being  of  the  local  board  of  health,  if  necessar}' ;  and  the 
balance  of  78/.  3s.  9c/.  at  the  exjiiration  of  four  months  from  the  date 
of  the  said  surveyor's  certificate  of  completion  ;  provided  the  therein- 
mentioned  roads,  pathw.aj's,  drains,  and  culverts,  and  every  part 
thereof,  should  be  certified  by  the  said  surveyor  to  be  in  good  repair 
and  in  perfect  and  sound  condition  in  all  respects ;  it  being  thereby 
intended  and  agreed  that  all  the  said  works  and  materials  should 
be  so  put  and  kept  in  good  repair  until  the  expiration  of  such 
four  months  from  completion  by  and  at  the  sole  cost  and  expense 
of  the  said  contractors  ;  and  the  defendants  thereby  agreed  with  the 
said  Francis  Aj-res,  Wilham  Mallows,  and  William  Johnson,  in  (X)n- 
sideration  of  the  due  performance  of  the  said  agreements  therein 
contained  on  their  part,  to  pay  to  them  the  sum  of  312/.  15s.  at  the 
times  and  in  the  manner  thereinbefore  mentioned.  Averment :  that 
although  156/.  7s.  6(/.,  part  of  the  said  sum  of  312/.  15s.,  had  been  paid, 
and  all  things  necessary  on  the  part  of  the  said  contractors  to  entitle 
Ihem  t<i  have  the  certificate  of  the  surveyor  of  the  defendants,  that  thfi 


692  CLARKE   V.   WATSON.  [CHAP.   V. 

whole  of  the  works  in  the  said  plans,  drawings,  and  specifications  had 
been  duly  and  etRciently  performed  and  completed  to  his  satisfaction, 
and  also  to  the  satisfaction  of  the  engineer  of  the  said  local  board  of 
health,  had  been  done  and  performed  In'  them ;  vet  the  said  surveyor 
had  not  given  such  cert'tifnfp,  hnh  ]i-j^|  vvmiio-rnlly  mu}  ifnoroperlv 
noiT](u-U>^a^n^]  j-pfpspf1  sn  to  do^  nor  had  the  def(>ndnnls  ])aid  the  sajfT 
sum  of  78Z.  3^.  9d.  payable  on  such  certilicate  ;_and  that,  although  more 
tban  four  months  since  the  said  surveyor  ought  to  have  given  such  cer- 
tificate had  elapsed,  and  although  all  things  had  been  done  liy  the  said 
contractors  on  their  part  to  entitle  them  to  a  certificate  by  the  said 
surveyor  that  the  said  roads,  pathwaj's,  drains,  culverts,  and  every  part 
thereof,  were  at  the  expiration  of  the  said  four  months  in  good  repair, 
and  in  perfect  and  sound  condition  in  all  respects,  yet  the  said  surveyor 
had  not  granted  such  certificate,  but  had  wrongfully  and  improperly 
neglected  and  refused  to  do  so,  and  the  defendants  hail  not  jet  paid  the 
said  balance  of  78/.  3s.  dd. 

The  defendants  demuiTcd  to  this  count,  and  the  plaintiffs  joined  in 
demurrer. 

Henry  James^  in  support  of  the  demuiTer.^  Two  bi-eaches  are 
alleged  in  the  declaration.  The  first  is,  that  the  defendants  have  not 
paid  the  78/.  3s.  9r/.  The  answer  to  that  is,  that,  b}'  the  terms  of  the 
contract,  it  was  i)ayable  only  upon  production  of  the  surveyor's  certifi- 
cate, which  has  not  been  produced.  The  second  breach  is,  that  the 
surveyor  has  wi-ongfull}'  and  improperly  withheld  his  certificate.  No 
fraud,  however,  or  collusion  is  chai-ged.  It  is  not  even  alleged  that 
the  conduct  of  the  surveyor  was  fraudulent ;  the  allegation  that  ho 
wrongfully  and  improperly  neglected  and  refused  to  grant  his  certifi- 
cate would  be  satisfied  by  showing  that  he  had  been  guilty  of  a  mere 
error  in  judgment.  Scott  ?;.  The  Corporation  of  Liverpool,  1  Gitfard, 
216,  is  precisel}'  in  point.   .   .   } 

Parry  ^  Serjt.,  contia.*  Substantiallj',  this  is  an  action  for  a  tort.  The 
plaintiflT  complains  of  a  wrong  done  by  the  agent  of  the  defendants. 
Lambert  was  not  acting  for  the  plaintiffs,  but  for  the  defendants  alone, 
to  protect  them  against  overcharges  by  the  contractors.  The  contract 
in  etfect  is  that  the  defendants  will  emplo}'  Lambert,  "  or  other  their 

1  The  points  marked  for  argument  on  the  part  of  the  defendants  were  as  follows : 
1.  That  tlie  first  count  discloses  no  cause  of  action  against  the  defendants;  2.  That 
the  plaintiffs  are  not  entitled  to  recover  without  ohtaining  the  several  certificates  ol 
the  surveyor ;  ?>.  That  the  defendants  are  not  liable  for  the  surveyor  not  giving  such 
certificates  ;  and  that  in  the  absence  of  such  certificates,  no  breach  of  the  agreement 
i«"  shown 

''  The  learned  counsel  here  stated  that  case. 

'  The  points  marked  for  argument  on  the  part  of  the  plamtiffs  were  as  fellows: 
1.  That  the  surveyor  is  the  agent  of  the  defendants,  and  they  are  bound  to  emplov 
him  to  certify  according  to  the  said  agreement;  2.  That  the  surveyor  is  responsible 
to  the  defendants  for  improperly  certifying  or  omitting  to  certify  ;  and  they  are  re 
sponsible  to  the  j)lainti£Es ;  3.  That  the  wrongful  refusal  of  the  defendant's  agent  tc 
certify  is  a  dispensation  of  the  condition  precedent,  and  equivalent  to  the  defendant'! 
presenting  the  certificate  being  granted. 


SECT.   I.]  CLAKKE   V.    WATSON.  693 

surveyor  for  the  time,"  to  perform  the  duties  of  surveyor  rightfully  and 
honestly' ;  and  the  defendants  are  responsible  if  the  person  so  employed 
shall  wrongfully  or  improperly  withhold  his  certificate.  [Wili.es,  J. 
The  declaration  states  that  the  work  was  done  to  the  satisfaction  of  the 
surveyor.]  Yes.  In  Pawle}'  v.  Turnbull,  7  Jurist,  n.  s.  792,  Vice- 
Chancellor  Stuart  held  the  conduct  of  the  architect  in  withholding 
certificates  to  amount  to  improper  conduct,  and  decreed  payment  of 
the  monej-  notwithstanding  their  absence.  The  defendants  must  be 
held  to  have  dispensed  with  the  condition  of  an  engineer's  or  surveyor's 
certificate,  if  they  appoint  a  man  who  wrongful!}'  abstains  from  acting. 
[WiLLKs,  J.,  referred  to  Harrison  r.  The  Great  Northern  Railway 
Company,  11  C.  B.  J^lo,  and  The  Great  Northern  Railway  Compan}" 
V.  Harrison,  12  C.  B.  576.]  In  Milner  v.  Field,  5  Exch.  829,  there 
were  negative  words  in  the  contract:  the  proviso  was,  that  "no 
instalment  should  be  paid  unless  the  plaintitf  delivered  to  the  de- 
fendant a  certificate  signed  by  the  sui'\eyor  of  the  defendant,  that  the 
works  were  performed  according  to  the  specifications."  Batterbury  o. 
Vyse,  2  llurlst.  &  Colt.  42,  is  in  reality  an  authority  for  the  plaintiff, 
though  the  declaration  alleged  that  the  survej'or,  in  neglecting  to  certify, 
acted  in  collusion  with  the  defendant  and  by  his  procurement.  The 
point  marked  for  argument  on  the  part  of  the  plaintiff  there  was,  "  that 
the  defendant  who  employs  the  architect  does  contract  with  the  plain- 
tiff that  he  will  do  his  duty  and  act  fairly." 

James  was  not  called  upon  to  reply. 

Erle,  C.  J.  I  am  of  opinion  that  the  judgment  in  this  case  ought 
to  be  for  the  defendants.  The  contract  which  they  entered  into  was, 
to  pay  to  the  contractors,  the  plaintiffs,  certain  sums  on  production  by 
them  to  the  defendants,  or  one  of  them,  of  the  certificate  of  William 
Lambert,  or  other  the  sun'eyor  for  the  time  of  the  defendants.  Many 
contracts  are  so  made.  Everj'  man  is  the  master  of  the  contract  he 
may  choose  to  make  ;  and  it  is  of  the  highest  importance  that  every 
contract  should  be  construed  according  to  the  intention  of  the  con- 
tracting parties.  And  it  is  important,  in  a  case  of  this  description, 
that  the  person  for  whom  the  work  has  been  done  should  not  be  called 
upon  to  pay  for  it  until  some  competent  person  shall  have  certified 
that  the  work  has  been  properl}'  done,  according  to  the  contract  and 
specification.  Here  the  contract  is,  that  the  money  shall  become  pay- 
able on  production  by  the  plaintiffs  to  the  defendants  of  the  certificate 
of  their  (the  defendants')  surve^'or,  that  the  contractors  have  duly  and 
ellicieiitly  performed  and  completed  the  work  to  his  satisfaction.  No 
such  certificate  has  been  produced.  But  it  is  said  that  the  plaintiffs 
have  done  all  things  necessary  to  entitle  them  to  have  the  certificate 
of  th<)  surveyor  that  the  works  had  been  duh^  performed  and  completed 
to  his  satisfaction,  and  that  the  said  surveyor  had  "  wrongfully  and 
improperly"  neglected  and  refused  so  to  do.  That,  in  my  opinion,  is 
not  .sufficient.  If  it  had  been  alleged  that  the  defendants  wrongfully 
cUudc'd    with    the    survevor   to   cause   the   certificate   to  be  withheld. 


694  BATTERBURY   V.    VYSE.  [OHAP.    V. 

they  could  not  have  sheltered  themselves  by  their  own  wrongftii  act. 
But  the  word  "  wrongfully,"  as  used  here,  does  not  intimate  any  thing 
of  that  sort.  If  the  plaintiffs  had  intended  to  rely  on  the  withhold- 
ing of  the  certificate  as  a  wrongful  act  on  the  part  of  the  defendants, 
they  should  have  stated  how  it  was  wrongAil.  This  is  in  effect  an 
attempt  on  the  part  of  the  plaintiffs  to  take  from  the  defendants  the 
protection  of  their  surveyor,  and  to  substitute  for  it  thip  opinion  of  a 
jury.  That  is  not  the  contract  which  the  defendants  have  entered  into. 
The  allegations  on  the  part  of  the  plaintiffs  are  not  in  my  judgment 
such  as  to  entitle  them  to  succeed. 

Williams,  J.  I  am  of  the  same  opinion.  Notwithstanding  the  sur- 
veyor may  have  been  wrong  in  withholding  his  certificate,  the  money  is 
not  due. 

WiLLES,  J.  I  am  of  the  same  opinion.  Consistently  with  the  alle- 
gations in  this  declaration,  the  only  wrong  the  surveyor  has  been 
guilty  of  may  be  an  error  in  judgment,  or  he  may  have  refused  to  ex- 
ercise any  judgment ;  in  which  case  the  proper  course  would  have  been 
to  call  upon  the  defendants  to  appoint  some  other  suiTcyor  who  will  do 
Ms  duty. 

Keating,  J.,  concurred.  Judgment  for  the  defendants. 


BATTERBURY   v.   VYSE. 
In  the  Exchequer,  Aprll  22,  1863. 

[Reported  in  2  Hurlstone  ^*  Coltman,  42.] 

Declaration.  For  that  heretofore,  to  wit,  on,  &c.,  the  plaintiff  and 
the  defendant  agreed  that  the  defendant  should  em{)loy  the  plaintiff  to 
do  and  provide  for  him,  and  that  the  plaintiff  should  do  for  the  defend- 
ant certain  specified  works,  and  provide  for  the  defendant  certain  spe- 
cified materials,  at  No.  125  Oxford  Street,  upon  the  following  terms 
and  conditions,  that  is  to  say:  "  All  the  works  hereinbefore  described 
(meaning  the  description  contained  in  a  certain  specification  of  the 
said  woiks)  are  to  be  executed  in  the  very  best  and  most  workmanlike 
mann(;r,  with  the  very  best  quality  of  materials  of  every  description, 
under  the  superintendence  and  to  the  satisfaction  of  Mr.  Vyse  and  his 
architect.  The  works  described  are  intended  to  embrace  every  thing 
that  may  be  necessary  for  the  perfect  completion  of  the  several  altera- 
tions. If,  therefore,  through  any  error  or  inadvertence,  any  matter  or 
thing  which  may  be  deemed  by  the  architect  as  essential  to  this  end 
be  omitted,  it  is  to  be  supplied  and  performed  b^'  tlie  contractor  in  hke 
manner  as  if  it  had  been  particularly  specified  ;  and  if  in  the  course  of 
the  woik  it  should  be  found  necessary  to  make  any  addition  to  or 
omission   from    the   said    works     such    deviation    is    nf)t    in    any   wa> 


SECT.    I.]  BATTERBURY   V.   VYSE.  695 

to  vitiate  tlae  contriict,  but  the  value  of  such  works  shall  be  esti- 
mated by  the  architect,  and  the  value  thereof  added  to  or  deducted 
from  the  contract  sum  as  the  case  may  be,  the  decision  of  the 
arcliitect  being  final  and  conclusive  in  all  matters  affecting  the 
proposed  works,  Tlife  amount  of  the  contract  will  be  paid  by  in- 
stalments ecjual  to  the  value  of  80Z.  per  cent  of  the  value  of  the 
works  executed,  the  balance  witliin  one  month  al'ter  final  comple- 
tion to  the  architect's  satisfaction,  l,^utnojDavment\vill  be  considered 
ihaeunless  upon  pioduction  of  the  architect's  certinca|^7^"^Trienfol- 
lowed  an  agreement  bytlTe^deiendaht"  tcT'execute  the  works  for  610/. 
Averments :  That  pursuant  to  the  contract  the  plaintitf  did  the  speci- 
fied works  and  provided  the  materials,  with  the  exception  of  certain 
omissions  which  were  duly  required  by  the  defendant  and  his  archi- 
tect ;  and  that  he  also  did  divers  and  very  many  additional  works 
which  were  duly  required  to  be  done  b}'  the  defendant  and  his  archi- 
tect ;  and  that  the  value  of  the  said  works  and  materials  amounted  to 
a  large  sum,  to  wit,  1,000L,  whei'eof  the  defendant  had  due  notice  ;  and 
although  the  defendant  paid  to  the  plaintiff  600/.,  on  account  of  the 
said  works,  leaving  a  large  balance,  to  wit,  400/.,  of  the  fair  and  reason- 
able value  of  the  said  works,  estimated  according  to  the  said  contract, 
unpaid  ;  and  although  the  plaintiff  had  done  all  things  necessary  on 
his  part  to  entitle  him  to  have  the  value  of  the  said  extras  and  omis- 
sions estimated  by  the  said  architect,  and  to  entitle  him  to  the  said 
architects  certificate  for  payment ;  and  although  he  had  completed 
the  said  works  to  the  satisfaction  of  the  defendant's  architect ;  and 
although  more  than  a  month  from  such  time  had  elapsol ;  and  although 
the  defendant  and  his  architect  had,  at  all  times  since  the  doing  of  the 
said  works  and  the  providing  of  the  said  materials,  full  knowledge 
that  the  plaintiff  was  entitled  to  be  paid  by  the  defendant  a  large  sum 
of  money  over  and  above  the  money  so  paid  ;  and  although  a  reason- 
able time  for  the  said  architect  to  estimate  the  value  of  the  said  addi- 
tions and  omissions,  anti  to  certify  as  aforesaid,  and  for  the  defendant 
to  pay  for  the  said  works,  had  long  since  elapsed ;  yet  the  architect 
had  not  estimated  the  value  of  the  said  additions  and  omissions,  noi 
had  he  certified  as  aforesaid,  but  wholly  neglected  so  to  do,  and  had 
unfairly,  improperly,  and  contrary  to  the  true  intent  and  meaning  of 
the  said  contract,  neglected  to  estimate  the  value  of  the  said  additions 
and  omissions,  and  neglected  to  certify  as  aforesaid,  and  had  so  ne- 
glected in  collusion  with  the  defendant  and  by  his  procurement.  By 
means  of  which  premises  the  plaintiff  has  been  un.able  to  obtain  pa}'- 
nient  of  the  balance  justly  due  to  him  for  the  said  works,  and  the  saiti 
balance  still  remains  wholly  due  and  unpaid  to  the  plaintifiT. 

Demurrer,  and  joinder  therein. 

Gates,  in  support  of  the  demurrer.  The  declaration  is  bad.  The 
[)roduction  of  the  architect's  certificate  is  a  condition  precedent  to  the 
plaintiff's  right  to  claim  an}'  payment.  [IMartin,  B.  This  is,  in  sub- 
stance,   H  declaration   in  case    alleging  that  the  defendant,    acting  ir 


696  BATTERBUEY   V.    VYSE.  [CHAP.   V. 

collusion  with  the  architect,  procured  him  untairiy  and  improperly  to 
vvithliold  his  certificate.]  Treated  as  an  action  of  contract,  the  plain- 
tiff cannot  recover,  because  he  has  not  complied  with  the  condition 
which  entitled  him  to  payment ;  and  it  is  not  an  action  on  the  case, 
because  it  does  not  charge  fraud,  or  allege  any  duty  on  the  part  of  the 
defendant  which  he  has  neglected  to  i)erform.  However  unreasonable 
and  oppressive  a  stipulation  or  condition  may  be,  a  court  of  law  is 
bound  to  give  effect  to  the  terms  agreed  upon  between  the  parties. 
Stadliard  v.  Lee.^  [Bhamwell,  B.  That  case  does  not  touch  this. 
Here  the  complaint  is  not  that  something  has  been  done,  and  done 
wrongl}',  but  that  tliere  has  been  an  improper  refusal  to  do  that  which 
ought  to  have  been  done.]  The  opinion  of  Erie,  J.,  in  Scott  v.  The 
Corporation  of  Liverpool,^  is  an  express  authoritv  that,  in  the  absence 
of  fraud,  the  withholding  the  certificate  by  the  architect  affords  no  right 
of  action  against  the  defendant,  either  on  the  ground  of  a  waiver  of 
the  condition,  or  the  substitution  of  a  new  contract,  or  on  the  ground 
of  a  wrong.  This  is  an  attempt  to  obtain  indirectly  that  which  the 
plaintiff  is  not  entitled  to  by  the  terms  of  his  contract.  If,  indeed, 
the  certificate  was  withheld  b}-  fraud,  the  plaintiff  might  have  a  remedy 
by  action.  Milner  v.  Field.  But  it  is  consistent  with  ever}*  allegation 
in  this  declaration  that  the  architect  was  requested  V»y  the  defendant 
not  to  certify,  because  he  was  dissatisfied  with  the  work.  [Wilde,  B. 
The  declaration  contains  an  averment  that  the  plaintiff  had  done  all 
things  necessar}'  to  entitle  him  to  the  certificate,  and  that  he  had  com- 
pleted the  works  to  the  satisfaction  of  the  defendant's  architect ;  and 
that,  although  the  defendant  and  his  architect  had  knowledge  that  th,e 
plaintiff  was  entitled  to  be  paid,  the  architect  neglected  to  certify,  ''  in 
collusion  with  the  defendant  and  by  his  procurement."]  There  is  no 
allegation  that  the  works  were  done  to  the  satisfaction  of  the  defend- 
ant. [Wilde,  B.  There  is  an  averment  that  the  plaintiff  had  done  all 
things  necessary  to  entitle  him  to  the  certificate.]  The  word  "col- 
lusion" does  not  necessarily  impl}'  fraud.  [Pollock,  C.  B.  In  Web- 
ster's Dictionary  one  definition  of  "  collusion"  is  "  a  secret  agreement 
for  a  fraudulent  purpose."] 

J.  Broxon  appeared  in  support  of  the  declaration,  but  was  not  called 
upon  to  argue. ^ 

Pollock,  C.  B.  We  are  all  of  opinion  that  the  declaration  is  good, 
and  that  the  plaintiff  is  entitled  to  judgment. 

Maktin,  B.,  and  Bramwell,  B.,  concurred. 

Judgment  for  the  plaintiff.* 

1  3  B.  &  S.  364,  372.  2  j  Qiff.  216,  223. 

3  The  point  tur  argument  was:  "That  the  defendant  who  employs  the  architect 
does  contract  witli  tlie  plaintiff  that  he  will  do  his  duty  and  avt  fairly." 

4  St.  Louis,  &c.  R.  11.  Co.  V.  Kerr,  1.53  111.  182;  Crawford  r.  VVolf,  20  Ta.  567; 
Smith  V.  White.  5  Xeh.  405;  Whelen  !-.  Boyd,  114  Ta.  228;  Mills  v.  I'anl  (Tex.  Civ. 
App.),  30  S.  VV.  Kep.  558,  acr. 

See  also  l.inch  v.  Paris  Lumber  Co.,  80  Te.\.  23;  Markey  ij.  Milwaukee,  76  Wis. 
349. 

Fraud  or  refusal  to  exercise  an  honest  judgment,  thouq'h  without  collusion  of  the 


SECT.    I.]  TULLIS    V.   JACSOIf.  697 

TULLIS   V.   JACSON.  *\/^*^ 

In  the  Chancery  Division,  July  7,  1892. 

[Reported  in  [1892]  3  CAancer^,  441.] 

E.  R.  Harris,  bj  his  will,  bequeathed  the  residue  of  his  estate  to 
trustees,  and  directed  that  tlie}'  should  erect  a  free  public  library  and 
museum  at  Preston,  and  apph'  such  part  of  his  estate  as  should  be 
necessar3'  in  the  building  of  such  libraiy  and  museum. 

By  an  order  dated  the  24th  of  June,  1882,  made  in  an  action 
intituled,  "  In  the  Matter  of  the  Estate  of  E.  R.  Harris.  Jacson  v. 
Governors  of  Queen  Anne's  Bounty  [1878  H.  189],"  a  scheme  for  the 
erection  of  the  free  public  library  was  approved,  and  the  defendants, 
Charles  Roger  Jacson,  Charles  Harrison  Wood,  and  David  Irvin,  the 
trustees  of  the  will,  were,  together  with  other  persons,  the  survivors  of 
whom  were  also  defendants,  appointed  a  committee  to  carry  out  the 
scheme. 

The  committee  advertised  for  tenders  for  the  execution  of  the 
work  to  be  erected,  and  the  tender  of  the  plaintiffs,  who  were  con- 
tractors at  Preston,  was  accepted,  and  an  agreement,  dated  the  27th 
of  November,  1883,  was  entered  into  between  the  committee,  of  the 
one  part,  and  the  plaintiffs,  of  the  other  part,  with  regard  to  the  exe- 
cution of  the  works,  and  the  payment  to  the  plaintiffs  of  the  amounts 
due  to  them,  pursuant  to  the  architect's  certificates,  out  of  the  funds  in 
court,  to  the  credit  of  Jacson  v.  Governors  of  Queen  Anne's  Bounty. 
The  agreement  provided  that  the  committee  were  to  be  under  no 
personal  liabilit}'  to  the  plaintiffs. 

The  defendant  Hibbert  was  afterwards  appointed  architect,  and 
was  to  be  paid  out  of  the  same  funds.  The  defendant  Walmsley  was 
also  employed  b^'  the  committee  and  was  to  be  paid  out  of  the  same 
funds.  The  plaintiffs  claimed  priority  against  both  Hibbert  and 
Walmsle}". 

Questions  as  to  the  validit}'  of  the  final  certificate  given  bv  the 
architect,  which  was  disputed  on  the  ground  of  fraud,  having  arisen, 
this  action  was  commenced,  amongst  other  things,  for  an  account  of 
what  was  due  to  the  plaintiffs  under  and  by  virtue  of  the  agreement, 
and  for  labour  and  materials  supplied  at  the  request  of  the  defendants. 
No  relief  was  asked  at  the  trial  against  Hibbert. 

defendant,  has  also  been  held  an  excuse  for  failure  to  produce  a  certificate.  North 
American  Ry.  Const.  Co.  v.  R.  E.  McMath  Surveying  Co.,  116  P'ed.  Rep.  169  ;  Michaelis 
t'.  Wolf,  136  111.  68;  McDonald  v.  Patterson,  186  III.  381  ;  Foster  v.  McKeown,  192 
111.  339;  Eldridge  r.  Fuhr,  59  Mo.  App.  44;  Chism  y.  Schipper,  51  N.  J.  L.  1; 
Bradner  v.  Roffsell,  57  N.  J.  L.  32. 

See  also  Arnold  v.  Bournique,  144  111   132;  Bean  v.  Miller,  69  Mo.  384;  Justice  v 
Elwert,  28  Oreg.  460. 


698 


TULLIS   V.   JACSON. 


[chap.  V. 


The  plaintiffs  alleged,  in  par.  13  of  their  statement  of  claim,  that 
the  defendant  Hibbert,  the  architect  (as  the  committee  well  knew), 
had  not  bona  fide  certified  the  amount  due  to  the  plaintiffs,  but  had 
T^nowingly  certified  for  a  smaller  sum  than  was,  in  fact,  due  to  tiie 
plaintiffs,  in  order  to  have  a  larger  sum  available  for  the  sura  claimed 
bj'  him. 

The  onl}-  point  in  the  case  calling  for  a  report  was  as  to  the  validity 
of  the  31st  clause  of  the  agreement,  which,  so  far  as  is  material,  was 
as  follows  :  — 

"  That  ill  case  of  any  doubts,  disputes,  or  differences  arisinj?  or  happening 
touching  or  concerning  the  works  to  be  executed  by  the  said  contractors, 
or  any  of  such  works  .  .  .  such  doubts,  disputes,  or  differences  shall  from 
time  to  time  be  referred  to  and  left  to  the  sole  and  absolute  arbitrament  and 
decision  of  the  said  architect,  and  his  decision  shall  be  final  and  bindinc:  on 
all  parties  .  .  .  and  the  directions,  decisions,  admeasurements,  valuations, 
certificates,  orders,  and  awards  of  the  said  architect  .  .  .  shall  be  final  and 
binding  upon  the  committee  and  the  contractors  respectively,  and  shall  not 
be  set  aside  or  attempted  to  be  set  aside  by  reason  or  on  account  of  any 
technical  or  legal  defects  therein  or  in  the  contract,  or  on  account  of  any 
informality,  omission,  or  delay,  or  error  of  proceeding  in  or  about  the  same 
or  any  of  them,  or  in  relation  thereto,  or  on  any  other  ground,  or  for  any 
other  reason,  or  for  any  pretence,  suggestion,  charge,  or  insinuation  of  fraud, 
collusion,  or  confederacy." 


Leoett,  Q.  C,  and  T.  R.  Hughes,  for  the  plaintiflTs :  — 

The  31st  clause  is  a  despotic  clause,  and  it  is  against  public  policy, 
and  the  court  will  not  listen  to  any  such  stipulation  in  any  contract, 
however  solemn. 

[Chittt,  J. :  — Does  not  the  clause  mean  that  you  must  not  charge 
fraud  against  Hibbert,  whose  character  is  well  known  to  you  ?] 

Hibbert  has  abused  his  powers  by  endeavoring  to  extort  money 
from  us. 

[They  referred  to  Kemp  v.  Rose,  1  Giflf.  258 ;  Kiraberley  v.  Dick, 
Law.  Rep.  13  Eq.  1  ;  Stevenson  v.  Watson,  4  C.  P.  D.  148.] 

Whitehor7ie,  Q.  C,  and  Church,  for  the  defendants,  the  com- 
mittee :  — 

No  case  of  fraud  is  opened  as  against  us,  and  no  fraud  is  alleged 
except  in  paragraph  13  of  the  statement  of  claim,  and  clause  31  was 
inserted  to  provide  against  fraud  on  the  part  of  the  architect. 

Favwell,  Q.  C,  and    George  Henderson,  for  the  defendant  Hibbert. 

T  .B.  Napier,  for  the  defendant  Walmsley. 

Chitty,  J.  (in  the  course  of  his  judgment,  and  having  read  the  31st 
clause  as  set  out  above,  proceeded)  :  — 

The  trustees  (the  committee)  are  not  now  charged  with,  and  have 
not  been  guilty  of,  fraud.  It  is  said  that  the  latter  part  of  the  clause 
is  void  on  the  ground  of  public  polic}'.  Whenever  public  policy  is 
mentioned,  it  is  the  duty  of  the  court  to  look  carefully  into  the  matter, 


SECT.   I.]  TULLIS   V.   JACSON.  '  699 

and  not  arbitrarilj'  extend  the  rules  upon  which  certain  decisions  have 
turned  in  regard  to  public  policy.  It  is  said  that  the  clause  is  void  as 
being  against  public  policy,  because  in  substance  it  is  an  agreement  on 
the  part  of  the  plaintiffs  and  defendants  through  the  committee  not  to 
set  up  fraud,  and  the  argument  proceeds  in  this  way.  "The  court 
will  not  listen  to  any  such  stipulation  to  be  found  in  an}'^  contract 
however  solemn,"  To  some  portion  of  this  argument  I  accede.  If 
a  contract  was  obtained  by  fraud,  and  in  the  contract  itself  there  was 
the  term  inserted  that  neither  party  should  impeach  the  contract  on 
the  ground  of  fraud,  it  may  well  be  that  such  a  term  would  not  stand, 
and  the  reason  is  obvious,  that  the  court  would  set  aside  that  contract, 
because  it  was  obtained  b}'  fraud,  and  setting  aside  the  contract,  it 
would  set  aside  the  stipulation.  That  is  a  case  I  put  by  way  of  illus- 
tration, of  fraud  between  the  parties  to  the  contract  in  its  inception. 
It  ma}'  well  be  also,  that  if  there  was  some  stipulation  where  some 
subsequent  things  had  to  be  done  which  went  to  fraud  on  the  part  of 
either  of  the  contracting  parties,  such  a  clause  as  that  would  not  hold. 
But  the  case  I  have  to  deal  with  appears  to  me  to  be  an  entirel}'  differ- 
ent one.  Those  who  frame  clauses  in  building  contracts,  which  some 
years  ago  were  stringent,  have  by  degrees  kept  on  making  them  more 
and  more  stringent  b}'  reason  of  the  consequences  that  follow  from 
opening  a  certificate,  and  the  enormous  cost  and  litigation  that  arises 
where  the  work  is  a  large  work  like  a  railway'  or  a  large  public  building 
from  any  coiirt  of  justice  endeavouring  to  take  the  account,  an  account 
of  thousands  and  thousands  of  items  on  every  one  of  which  skilful 
advisers  may  raise  some  issue,  whether  the  amount  should  stand  for 
the  sum  charged,  or  for  some  less  sum,  or  for  some  greater  sum.  A 
litigation  of  that  kind  it  is  almost  impossible  to  bring  to  a  conclusion 
in  a  court  of  justice  where  the  parties  are  entitled  to  be  heard,  and 
to  insist  on  every  possible  objection.  It  does  appear  to  me  that  those 
who  deal  in  matters  of  this  kind  are  wise  in  making  the  clauses  more 
and  more  stringent.  It  is  of  course  for  the  contractor  when  he  enters 
into  a  contract  of  this  kind  to  consider  whether  he  will  accept  it  or 
not.  I  have  no  doubt  contractors  do  accept  clauses  which  to  the 
lawyer  look  terrific;  but  they  doit  as  business  men,  they  do  it  for 
better  or  worse,  and  they  think  on  the  whole  it  is  ver}-  unlikeh*  that 
any  architect  selected  would  act  unjusth'  towards  them,  and  they  are 
content  to  take  him  as  the  person  whose  award  is  to  be  final  on  the 
subject.  Then  it  appears  to  me  that  the  ix)licj'  of  the  law  does  not 
require  that  I  should  hold,  in  the  case  I  am  now  dealing  with,  a  clause 
like  the  present  to  be  void.  To  put  an  illustration,  suppose  a  gentle- 
man who  is  going  to  have  a  house  built  for  him  enters  into  a  complex 
agreement  with  the  contractor,  in  the  performance  of  which  innumer- 
able questions  may  arise,  says,  "  Will  you  agree  with  me  (for  if  you 
will,  I  will  agree  with  you)  that  nothing  on  earth  shall  upset  the 
certificate  that  is  given?"  Why  is  that  unfair  or  against  public 
policy?     The  late  Master  of  the  Rolls  (Sir  G.  Jessel),  in  the  case  of 


700  TULLIS   V.   JACSON.  [CHAP.   V. 

the  Printing  and  Numerical  Registering  Co.  v.  Sampson,  Law  Rep. 
19  Eq.  462,  465,  says  this:  "If  there  is  one  thing  which  more  than 
another  public  policy  requires  it  is  that  men  of  full  age  and  competent 
understanding  shall  have  the  utmost  liberty  of  contracting,  and  that 
their  contracts  when  entered  into  freely  and  voluntarily  shall  be  held 
sacred  and  shall  be  enforced  by  courts  of  justice.  Therefore,  30U 
have  this  paramount  public  polic}'  to  consider  —  that  you  are  not 
lightly  to  interfere  with  this  freedom  of  contract."  Eutirelj'  agreeing 
as  I  do  with  these  remarks,  I  myself  can  see  no  reason  wh}-  grown-up 
men  should  not  be  allowed  to  contract  in  these  terms.  "  Neither  of 
us,"  each  says  to  the  other,  and  each  agrees  with  the  other,  "will 
ever  raise  the  charge  of  fraud."  Persons  will  shrink  ver}'  often  from 
charges  of  this  kind,  and  those  who  are  persistent,  will,  b}-  making 
charges,  induce  persons  to  come  to  terms  of  compromise.  It  seems 
to  me  that  this  clause  is  addressed  to  get  out  of  what  the  parties  may 
consider  evils,  and  which  I  have  endeavoured  to  describe.  Tlie  clause 
therefore  stand  thus:  "both  of  us  agree,"  to  our  advantage  or  dis- 
advantage as  it  may  turn  out,  "  that  every  certificate  given  by  the 
gentleman  named  shall  stand  firm  and  good  and  shall  not  be  ques- 
tioned even  for  fraud."  That  that  is  the  meaning  of  the  clause  I  have 
no  doubt.  Mr.  Levett  argued  that  the  word  "charge"  must  mean 
unfounded  charge,  and  he  said  that  because  he  found  the  words 
"  pretence"  (which  he  says  means  something  not  true)  "  suggestion" 
(something  that  you  dare  not  state  openly),  and  "  insinuation"  (some- 
thing else  that  sou  dare  not  state,  will  not  state,  and  have  not  the 
courage  to  state).  But  "charge"  was  his  difficulty,  and  he  said  the 
word  "charge"  is  coloured  by  all  the  other  three  words  there.  But 
the  answer,  I  think,  is  plain.  "  Charge"  is  the  word  which  has  been, 
I  think,  deliberatel}'  inserted  here,  because,  with  great  respect  to  the 
learned  counsel  who  advanced  it,  to  put  in  "unfounded  charge"  is 
almost  to  make  nonsense  of  it.  Any  man  who  makes  an  unfounded 
charge  of  fraud  fails  in  it,  and  no  protection  is  required.  Conse- 
quently, if  that  were  the  meaning  of  the  clause  it  would  have  no 
operation  whatever. 

The  sum  of  my  judgment  is  this,  that  the  parties  meant  what  they 
have  said,  and  that  tlie  term  "charge"  here  is  used  deliberately, 
"We  will  have  no  question  of  this  kind  raised  as  against  the  certifi- 
cate." I  need  hardly  sa}'  that  if  the  case  had  been  that  the  trustees 
themselves  had  been  party  in  an}'  way  to  the  fraud  it  would  have  been 
very  different,  and  it  may  be  that  Mr.  Zievetfs  argument  (and  as  at 
present  advised  I  think  it  would  have  been  so)  would  have  succeeded. 
The  trustees  are  not  even  insisting  on  a  certificate  which  they  believe 
to  be  fraudulent.  That  disposes  of  the  main  point  in  the  action,  and  it 
shows  that  the  action  is  not  justified  as  against  the  defendants,  whom  I 
have  shortly  called  the  trustees. 

Mr.  Hibbert,  the  architect,  is  charged  with  fraud,  and  on  such  a 
claim  as  this  the  charge  of  fraud  cannot  be    entered   upon,   because 


SECT.   I.]  NOLAN   V.   WHITNEY.  701 

this  is  not  an  action  against  him  to  recover  damages  from  him  for 
an  alleged  fraud  or  for  a  fraud.  The  allegations  of  fraud  as  against 
him  were  inserted  merely  for  the  purpose  of  founding  the  relief 
against  the  trustees.  Still,  although  no  relief  is  asked  against  him, 
these  allegations  in  the  statement  of  claim  do  stand  against  him,  and 
the  case  has  been  so  shaped  that  I  cannot  even  enter  upon  them  as 
between  him  and  the  plaintiffs.  It  necessarii}'  follows  that  I  must 
dismiss  the  action  as  against  him  with  costs  so  far  as  relate  to  these 
allegations  of  fraud. 

[His  Lordship  then  disposed  of  the  action  as  against  Walmslev, 
and  then  dismissed  the  whole  action  with  costs  as  against  the  Com- 
mittee and  the  defendant  Hibbert.]  ^ 


MICHAEL  NOLAN  et  al.,  Respondeots,  v.  CORDELIA  C. 
WHITNEY,  Appellant. 

New  York  Court  of  Appeals,  February  7-28,  1882. 

[Reported  in  88  New  York;  648.] 

In  Jul}',  1877,  Michael  Nolan,  the  plaintiffs'  testator,  entered  into  an 
agreement  with  the  defendant  to  do  the  mason  work  in  the  erection  of 
two  buildings  in  the  City  of  Brooklyn  for  the  sum  of  $11,700,  to  be 
paid  to  him  by  her  in  instalments  as  the  work  progressed.  The  last 
instalment  of  $2,700  was  to  be  paid  thirty  days  after  completion  and 
acceptance  of  the  work.  The  work  was  to  be  perfoimed  to  the  satis- 
faction and  under  the  direction  of  M.  J.  Morrill,  architect,  to  be  testi- 
fied by  his  certificate,  and  that  was  to  be  obtained  before  any  payment 
could  be  required  to  be  made.  As  the  work  progressed,  all  the  instal- 
ments were  paid  except  the  last,  and  Nolan,  claiming  that  he  had  fully 
performed  his  agreement,  commenced  this  action  to  recover  that  instal- 
ment. The  defendant  defended  the  action  upon  the  ground  that  Nolan 
had  not  fully  performed  his  agreement  according  to  its  terms  and 
requirements,  and  also  upon  the  ground  that  he  had  not  obtained  the 
architect's  certificate,  as  required  by  the  agreement. 

Upon  the  trial  the  defendant  gave  evidence  tending  to  show  tliat 
much  of  the  work  was  imperfectly  done,  and  that  the  agreement  had 
not  been  fully  kept  and  performed  on  the  part  of  Nolan  ;  the  latter 
gave  evidence  tending  to  show  that  the  work  was  properly"  done,  that 
he  had  fairl}'  and  substantiall}'  performed  his  agreement,  and  that  the 
architect  had  refused  to  give  him  the  certificate  which,  by  the  terms  of 
his  agreement,  would  entitle  him  to  the  final  payment.  The  referee 
found  that  Nolan  completed  the  mason  work  required  b}-  the  agreement 
according  to  its  terms ;  that  he  in  good  faith  intended  to  comply  with, 
and  did  substantiaHy  comply  with,  and  perform  the  requirements  of  his 

1  Compare  Redmond  v.  Wjune,  13  N.  S.  Wales  (Law),  39. 


702  NOLAN   V.    WHITNEY.  [CHAP.   V. 

agreement ;  but  that  there  were  trivial  defects  in  the  plastering  for 
which  a  deduction  of  $200  should  be  made  from  the  last  instalment, 
and  he  ordered  judgment  in  favor  of  Nolan  for  the  last  instalment, 
less  $200. 

The  court  say  :  "  It  is  a  general  rule  of  law  that  a  party  must  per- 
form his  contract  before  he  can  claim  the  consideration  due  him  upon 
performance  ;  but  the  performance  need  not  in  all  cases  be  literal  and 
exact.  It  is  sufficient  if  the  part}'  bound  to  perform,  acting  in  good 
faith,  and  intending  and  attempting  to  perform  his  contract,  does  so 
substantially,  and  then  he  may  recover  for  his  work,  notwithstanding 
slight  or  trivial  defects  in  performance,  for  which  compensation  may  be 
made  by  an  allowance  to  the  other  party.  Whether  a  contract  has  been 
substantially  performed  is  a  question  of  fact  depending  upon  all  the 
circumstances  of  the  case  to  be  determined  by  the  trial  court.  Smith 
V.  Brady,  17  N.  Y.  189  ;  Thomas  v.  Fleury,  26  id.  26  ;  Glacius  v. 
Black,  50  id.  145  ;  Johnson  v.  DePeyster,  50  id.  666  ;  Phillip  v.  Gallant, 
62  id.  256  ;  Bowery  Nat.  Bank  v.  The  Mayor,  63  id.  336.  According 
to  the  authorities  cited  under  an  allegation  of  substantial  performance 
upon  the  facts  found  by  the  referee,  Nolan  was  entitled  to  recover 
unless  he  is  barred  because  he  failed  to  get  the  architect's  certificate, 
which  the  referee  found  was  unreasonabl}'  and  improperly  refused. 
But  when  he  had  substantially  performed  his  contract,  the  architect 
was  bound  to  give  him  the  certificate,  and  his  refusal  to  give  it  was 
unreasonable  ;  and  it  is  held  that  an  unreasonable  refusal  on  the  part  of 
an  architect  in  such  a  case  to  give  the  certificate  dispenses  with  its 
necessit}'." 

Oscar  Frisbie^  for  appellant. 

N.  II.  Clement.,  for  respondent. 

Earl,  J.,  reads  for  affirmance. 

All  concur. 

Judgment  affirmed.^ 

1  In  Vought  V.  Williams,  120  N.  Y.  253,  an  action  for  breach  of  a  contract  to  buj 
real  estate  which  provided  that  the  title  was  to  be  passed  upon  by  a  lawyer  or  convey- 
ancer to  be  designated  by  the  defendant,  the  court,  while  refusing  specific  performance 
on  the  ground  that  the  plaintiff's  title  was  defective,  said  :  "  The  provision  that  the 
title  was  to  be  passed  upon  by  the  defendant's  lawyer  or  conveyancer  did  not  make  the 
decision  of  the  conveyancer  that  the  title  was  good,  a  condition  precedent  to  the  right 
of  the  plaintiff  to  enforce  the  performance  of  the  contract.  If  a  decision  to  that  effect 
was  refused  unreasonably,  the  failure  to  obtain  it  would  not  defeat  a  recovery,  and  it 
would  have  been  unreasonably  refused  if,  in  fact,  beyond  all  dispute  the  title  was  good. 
Folliard  v.  Wallace,  2  Johns.  395 ;  Thomas  v.  Fleury,  26  N.  Y.  26 ;  City  of  Brooklyn  v. 
B.  C.  R.  R.  Co.,  47  N.  Y.  475  ;  B.  N.  Bank  v.  Mayor,  etc.,  63  N.  Y.  336 ;  D.  S.  B.  Co. 
V.  Garden,  101   N.  Y.  388 ;  Doll  v.  Noble,  116  N.  Y.  238." 

See  also  Van  Keuren  v.  Miller,  71  Hun,  68  ;  Anderson  v.  Imhoff,  34  Neb.  335  ; 
Thomas  v.  Stewart,  132  N.  Y.  580,  586;  Macknight  Flintic  Stone  Co.  ?;.  Mayor,  160 
N.  Y.  72,  86;  Whelen  v.  Boyd,  114  Pa.  228;  Sullivan  v.  Byrne,  10  S.  C.  122;'Nor- 
folk,  &c.  Ry.  Co.  V.  Mills,  91  Va.  613;  Washington  Bridge  Co.  v.  Land  &  River  Im- 
provement Co.,  12  Wash.  272;  Bentley  v.  Davidson,  74  Wis.  420;  Wendt  v.  Vogel, 
87  Wis.  462. 

In  Van  Clief  v.  Van  Vechten,  130  N.  Y.  571,  the  court,  referring  to  a  building  con- 


SECT.   I.]  THURNELL  V.   BALBIRNIE.  703 


THURNELL  v.  BALBIRNIE. 

In  the  Exchequer,  TRrNrrr  Term,  1837. 

[Reixfrted  in  2  Mee^on  ^  WeUhy,  786. J 

The  first  count  of  the  declaration  stated,  that  before  and  at  the  time 
of  making  the  agi'eement  and  the  promise  and  undertaking  of  the  de- 
tract, said  :  "  The  question  of  substantial  performance  depends  somewhat  on  the  good 
faith  of  the  contractor.  If  he  has  intended  and  tried  to  comply  with  the  contract  and 
has  succeeded,  except  as  to  some  slight  things  omitted  by  inadvertence,  he  will  be 
allowed  to  recover  the  contract  price,  less  the  amount  necessary  to  fully  compensate 
the  owner  for  the  damages  sustained  by  the  omission.  Woodward  v.  Fuller,  80 
N.  y.  312;  Nolan  v.  Whit^ney,  68  id.  648  ;  Phillip  v.  Gallant,  62  id.  2.56,  264 ;  Glacius 
V.  Black,  50  id.  145;  s.  c.  67  id.  56.3,  566  ;  Johnson  v.  DePeyster,  50  id.  666 ;  Sinclair 
V.  Tallmadge,  35  Barb.  602.  But  when,  as  in  this  case,  there  is  a  wilful  refusal  by  the 
contractor  to  perform  his  contract  and  he  wholly  abandons  it,  and  after  due  notice 
refuses  to  have  anything  more  to  do  with  it,  his  right  to  recover  depends  upon  jjer- 
formance  of  his  contract,  without  any  omission  so  substantial  in  its  character  as  to 
(;all  for  an  allowance  of  damages  if  he  had  acted  in  good  faith.  While  slight  and 
insignificant  imperfections  or  deviations  may  be  overlooked  on  the  principle  of  de 
JH m('m?'s  non  C'/rai /^r,  the  contract  in  other  respects  must  be  performed  according  to 
its  terms.  When  the  refusal  to  proceed  is  wilful  the  difference  between  sub.<tantial 
and  literal  performance  is  bounded  by  the  line  of  dp.  minivns.  Smith  v.  Bradv,  17 
N.  Y.  173;  Cunningham  v.  Jones,  20  id.  486;  Bonsteel  v.  Mayor,  etc.,  22  id.  162; 
Walker  v.  Millard,  29  id.  375  ;  Glacius  v.  Black,  50  id.  145;  Catliu  v.  Tobies,  26  id. 
217 ;  Husted  v.  Craig,  36  id.  221  ;  I'laherty  v.  Mhier,  123  id.  382;  Hare  on  Contracts, 
5G9  ;  Leake  on  Contracts,  821." 

In  Chicago,  Santa  Fe'  and  California  Railroad  Company  v.  Price,  138  U.  S.  185,  an  ac- 
tion for  breach  of  a  contract  to  pay  for  certain  con.struction,  the  court  said  :  "  The  written 
contract  between  the  parties  in  this  case  does  not  materially  differ  from  the  one  before 
this  court  in  Martinsburg  &  Potomac  Railroad  Co.  r.  March,  114  U.  S.  549,  553.  In 
that  case  the  contractor  did  not  allege  in  his  declaration  that  the  engineer  ever  certi- 
fied in  writing  the  complete  jierformauce  of  the  contract,  together  with  an  estimate  of 
the  work  done  and  the  amount  of  compensation  due  him  according  to  the  prices  estab- 
lished by  the  parties ;  which  certificate  and  estimate  was  made  by  the  agreement  a 
condition  of  the  liability  of  the  company  to  pay  the  contractor  the  balance,  if  any,  due 
him.  Nor  did  the  declaration  allege  any  facts  which,  in  the  absence  of  such  a  certifi- 
cate by  the  engineer  whose  determination  was  made  final  and  conclusive,  entitled  the 
contractor  to  sue  the  company  on  the  contract.  It  was  held,  in  accordance  with  the 
principles  announced  in  Kihllierg  ?•.  United  States,  97  U.  S.  398,  and  Sweeney  r.  United 
States,  109  U.  S.  618,  that  the  declaration  was  fatally  defective  in  that  it  contained  'no 
averment  that  the  engineer  had  been  guilty  of  fraud,  or  had  made  such  gross  mistake 
in  his  estimates  as  necessarily  implied  bad  faith,  or  had  failed  to  e.xercise  an  honest 
judgment  in  discharging  the  duty  imposed  upon  him.'  Some  observations  in  that  case 
are  pertinent  in  the  present  one.     It  was  said :  '  We  axe  to  presume  from  the  terma 


704  THURNELL  V.  BAXBIRNIE.  [CHAP.  V. 

fendant  thereinafter  mentioned,  the  defendant  held,  occupied,  end 
enjoyed,  at  his  request,  certain  rooms,  apartments,  and  premises  of  the 
plaintiff,  as  tenant  thereof  to  the  plaintiff,  the  same  then  being  part  and 
parcel  of  a  dwelling-house  of  the  plaintiff,  and  in  which  there  were 
certain  goods  and  fixtures  and  chattels,  to  wit,  tSsc,  of  the  plaintiff,  of 
groat  value,  to  wit,  of,  &c.  ;  and  thereupon  heretofore,  to  wit,  on  the 
26th  of  December,  1836,  it  was  agreed  by  and  between  the  plaintiff 
and  the  defendant  in  manner  following,  that  is  to  say  :  the  plaintiff  then 
agreed  to  sell  and  deliver  to  the  defendant,  who  then  agreed  to  purchase 
and  take  of  the  plaintiff,  the  said  goods,  fixtures,  and  chattels,  at  a 
valuation  to  be  made  b}'  certain  persons,  to  wit,  Mr.  Newton  and  Mi. 
Matthews,  or  their  umpire ;  and  the  plaintiff  said,  that  the  said  Mr. 
Newton  was  appointed  b^'  and  on  behalf  of  the  plaintiff,  and  the 
said  Mr.  Matthews  by  and  on  behalf  of  the  defendant,  to  value  as 
aforesaid.  The  declaration  then  averred  mutual  promises,  and  alleged 
that  Newton,  on  behalf  of  the  plaintiff,  was  read}'  and  willing  to  value 
the  said  goods,  &c.,  and  at  the  request  and  b^'  the  authority  of  the 
plaintiff  requested  Matthews  to  value  the  same,  whereof  the  defendant 
and  Matthews  had  notice  ;  but  that  the  defendant  and  Matthews  then  and 
thence  continually  neglected  and  refused  so  to  do.  And  the  plaintiff 
further  said,  that  he,  the  plaintiff,  afterwards,  to  wit,  on  the  2d  of  Feb- 
ruary, 1837,  gave  notice  to  the  defendant  that  the  plaintiff's  said  ap- 
praiser and  valuer,  tlie  said  Newton,  was  ready  to  meet  the  defendant's 
appraiser  and  vahier,  the  said  Matthews,  or  anj'  other  person  he  might 
think  proper  to  nominate  for  the  purpose  on  the  defendant's  behalf,  at 

of  the  contract  that  both  parties  considered  the  possibility  of  disputes  arising  between 
them  in  reference  to  the  execution  of  the  contract.  And  it  is  to  be  presumed  that 
in  their  minds  was  the  possibility  that  the  engineer  might  err  in  his  determination 
of  sucii  matters.  Consequently,  to  the  end  that  the  interests  of  neither  party  siiould 
be  put  in  peril  by  disputes  as  to  any  of  the  matters  covered  by  their  agreement,  or  in 
reference  to  the  quantity  of  the  work  to  be  done  under  it,  or  the  compensation  which 
the  plaintiff  nught  be  entitled  to  demand,  it  was  expressly  stipulated  that  the  engineer's 
determination  should  be  final  and  conclusive.  Neither  party  reserved  the  riglit  to  revise 
that  determination  for  mere  errors  or  mistakes  upon  his  part.  They  chose  to  risk  his 
estimates,  and  to  rely  upon  their  right,  which  the  law  presumes  they  did  not  intend  to 
waive,  to  demand  that  the  engineer  should,  at  all  times,  and  in  respect  to  every  matter 
submitted  to  his  determination,  exercise  an  honest  judgment,  and  commit  no  such 
mistakes  as,  under  all  the  circumstances,  would  imply  bad  faith.' " 

In  Chism  v.  Schipper,  51  N.  J.  L.  1,  the  court,  while  holding  fraud  on  the  part  of  an 
architect  an  excuse  for  non-performance  of  a  condition  precedent  that  his  certificate 
should  be  procured,  said  :  "  Nor  does  it  seem  to  me  that  by  the  adoption  of  the  fore- 
going theory  of  explication  these  arbitration  clauses  will  be  shorn  of  any  beneficial 
efficacy.  The  awards  authorized  by  them  will,  for  all  useful  purposes,  be  in  truth  finali- 
ties; they  cannot  be  impeached  for  want  of  skill  or  knowledge  of  the  arbiter,  nor  on 
the  ground  that  his  judgments  do  not  square  with  the  judgments  of  other  persons; 
such  awards  can  be  vitiated  by  fraud  alone,  and  which  must  be  proved  to  the  .-jatisfac- 
tion  of  a  jury  under  a  watchful  judicial  supervision." 

See  also  Kennedy  i'.  United  States,  24  Ct.  CI.  122:  Dingley  v.  Greene,  54  Cal. 
3.33;  Fowler  v.  Deakman,,84  111.  130;  Gilmore  v.  Courtney,  108  111.  432;  Merrill 
c.  Gore,  29  Me.  346;  Baltimore  &  Oliio  R.  R.  Co.  v.  Brydon,  65  Md.  198;  Palmer 
V.  Clark,  106  Mass.  373  ;  Beharrell  v.  Quimby,  162  Mass,  571  ;  Shaw  v.  First  Baptist 
Church,  44  Minn.  22. 


SECT.    l.J  THURNELL  V.  BALBIRNIK.  705 

an\  time  within  ten  dayc  from  the  said  2d  of  February  which  the  du 
fendant  might  fix,  to  A-alue  the  said  goods,  &c.,  of  wliich  the  defendan'. 
then  had  notice,  but  then  and  thence  hitherto  wholly  neglected  and 
refused  to  appoint  any  da}-  for  his  appraiser,  the  said  Matthews,  to 
value,  and  whoUj*  neglected  and  refused  to  nominate  any  other  ap- 
praiser, and  during  all  that  time  has  wholly  refused  and  neglected  tc 
lake  an}'  steps  to  value  as  aforesaid,  or  to  cause  or  procure  the  same 
to  be  valued  according  to  his  said  agreement  and  promise,  and  has 
during  all  the  time  aforesaid  whoU}'  refused  to  value  the  said  goods, 
<&c.,  or  to  let  the  same  be  valued,  according  to  his  said  agreement 
and  promise.  And  thereupon  the  said  Mr.  Newton  afterwards,  and 
after  the  lapse  of  a  reasonable  period  of  time,  to  wit,  one  month  from 
the  da}'  and  the  year  last  aforesaid,  proceeded  to  value  and  did  then 
value  the  said  goods,  &c.,  and  the  price  thereof  upon  such  valuation 
rctisouably  amounted  to  the  sum  of  500/.,  whereof  the  defendant  had 
notice,  and  was  requested  to  pay  the  same  to  the  plaintiff.  And  the 
plaintiff  further  says,  that  he  hath  always  from  the  time  of  making  such 
valuation  as  aforesaid  been  ready  and  willing  to  sell  and  deliver  to  the 
defendant  the  said  goods,  &c.,  and  to  receive  pa}'ment  by  him  of  the 
value  thereof,  whereof  the  defendant  bath  always  had  notice ;  yet 
the  defendant,  not  regarding,  &c.,  did  not  nor  would,  although  often 
reouested.  take  the  said  goods.  <to..  mo  agreed  by  I'iro  to  be  taken  a* 
aforcsaiti,  ami  pay  the  plamtl3'  tht  vauie  thereof,  but  hath  hithertti 
wholly  neglected  and  refused  so  to  do,  whereby,  &c. 

There  were  also  counts  for  goods  and  fixtures  bargained  and  sold, 
and  on  an  account  stated. 

Special  demurrer  to  the  first  count  assigning,  amongst  other  causes, 
the  following  :  that  the  count  does  not  sufficiently  allege  a  breach  of 
the  defendant's  promise  therein  mentioned,  for  that  it  does  not  allege 
that  the  defendant  hindered  or  prevented  the  said  persons  appointed 
and  agieed  on  to  make  the  said  valuation,  or  either  of  them,  from 
making  such  valuation.  And  also  that  it  is  alleged  by  way  of  breach 
that  the  defendant  refused  to  take  the  goods,  &c.,  agreed  by  him  to 
be  taken,  and  that  he  also  refused  to  pay  to  the  plaintiff  the  value  of 
the  said  goods,  «&c.,  and  no  agreement  or  promise  is  stated  in  the  said 
count  to  take  the  said  goods,  &c.,  at  their  value  generally,  or  at  the 
valuation  made  by  the  said  Mr.  Kewton,  but  at  the  valuation  only  of 
the  said  Ne^-ton  and  Matthews,  or  their  umpire.     Joinder  in  demurrer. 

Kelly,  in  support  of  the  demurrer.  There  are  many  objections  in 
point  of  form  to  this  count ;  but  the  substantial  question  is,  where  two 
persons  are  by  agreement  appointed  to  make  a  valuation  of  goods,  and 
one  refuses,  can  either  party  be  liable  for  a  breach  of  the  agreement? 
How  could  the  defendant  be  bound  to  take  or  pay  for  the  goods  until 
they  had  been  valued  according  to  the  agreement?  [Gurnet,  B.  It 
is  not  said  that  INlatthews  omitted  to  value  by  the  procurement  of  the 
defendant.]  It  is  just  as  if  an  action  were  brought  against  a  party  to 
a  submission,  because  one  of  the  arbitrators  refuses  to  make  an  award. 

The  Court  here  called  u]nm 

Ho(/(j{ns.  to  supi^wrt  tlie  declaration.     It  is  specificall}-  averred  in  thf 

VOL.  I.  —  io 


706  THURNELL   V.  BALBIRNIE.  [CHAP.  V, 

count  that  the  dofcndant  had  notice  that  tlie  plaintiiV's  appraiser  wag 
read}-  to  vahie,  and  the  breach  assigned  is,  tiiat  he  then  wholly  refnsed 
to  let  tile  goods  be  valued  according  to  the  agreement.  It  is  submitted 
that  that  is  sulHcient  to  render  hiui  liable  for  the  price.  In  Hotham  r. 
East  India  Company  it  was  held,  that  where  the  defendant  by  his  neg- 
lect and  default  i)revented  the  perfonnance  of  a  condition  precedent  in 
a  charter-party,  that  was  equivalent  to  a  performance  by  the  plaint; Ifs. 
In  Raynay  v.  Alexander,  where  tlie  plaintiff  declared  iu  assumpsit  foi 
non-delivery  of  fifteen  tods  of  wool  purchased  by  him  out  of  seventeen, 
of  which  the  defendant  was  possessed,  the  declaration  was  held  bad  for 
want  of  an  allegation  tliat  the  plaintiff  had  selected  fifteen  tods  of  the 
seventeen,  which  was  an  act  to  be  first  performed  b}'  him  :  lint  the 
Ccurt  said  if  the  defendant  would  not  have  permitted  the  plaintiff  to  see 
the  wool,  that  he  might  make  election,  that  had  excused  the  act  to  be 
done  by  the  plaintiff,  and  had  been  a  default  in  the  defendant.  If  these 
cases  be  law,  the  facts  alleged  in  this  declaration  make  the  defendant 
liable  as  for  goods  bargained  and  sold. 

Lord  Abengkr,  C.  B.  I  am  of  opinion  that  thij  count  is  bad.  The 
agreement  stated  is  an  agreement  to  purchase  the  goods  on  the  vahia- 
tion  of  Newton  and  Matthews,  There  is  no  distinct  allegation  that 
the  defendant  refused  to  permit  Matthews  to  value  on  his  part  ;  but 
only  an  obscure  statement  that  he  refused  to  appoint  an}'  day  for  his 
valuing,  or  to  take  any  steps  to  value  or  to  cause  and  procure  the  goods 
to  be  valued,  according  to  his  agreement,  and  that  he  has  refused  to 
value  the  goods  or  to  let  them  be  valued  according  to  his  agi*eement ; 
all  which  comes  after  the  allegation  that  Matthews  had  refused  to  value, 
there  being  no  statement  that  he  had  changed  his  mind  and  was  ready 
and  willing  to  do  so,  but  that  the  defendant  would  not  permit  him.  I 
am  of  opinion,  therefore,  that  enough  is  not  stated  to  render  the  defend- 
ant liable  for  the  price  of  the  goods. 

Holland,  li.,  concurred. 

Alderson,  B.  I  should  refer  the  words  "  or  to  let  the  same  be 
valued,"  &c.,  to  the  defendant's  letting  the  goods  be  valued  by  another 
appraiser  instead  of  Matthews,  according  to  the  notice  which  the  plain- 
tiff says  he  gave  him. 

Gurnet,  B,,  concurred. 

henve  to  amend  on  payment  of  costs  ;  otherwise  judgment  for  the  defendant.^ 

1  As  to  the  effect  of  the  death  of  a  valuer,  see  Firth  v.  Midland  Ry.  Co.,  L.  R.  20 
Eq.  100. 

In  insurance  policies  an  appraisal  or  valnation  of  the  injnry  is  frequently  made 
a  coniHtion  precedent  to  a  right  of  action.  In  Brock  v.  The  Dwellinj^  House  Ins.  Co. 
102  Mich.  583,  it  was  held  this  condition  was  excused  hy  the  unreasotiahle  action  of 
the  appraiser  appointed  hy  the  company.  The  court  say  (p.  593)  :  "  It  is  well  settled 
that  where  the  conduct  of  the  company's  appraiser  iu  refn.sing  to  agree  on  an  umpire 
is  inexcusable,  and  virtually  amounts  to  a  refusal  tn  proceed  with  the  appraisement, 
the  fact  that  the  appraisement  was  not  concluded  before  suit  brought  will  not  bar  an 
action  on  the  policy.  McCnllough  v.  Insurance  Co.,  113  Mo.  606  ;  Bishop  v.  Insur.anc* 
Co.,  1.30  N.  Y.  488  ;  Uhrig  Insurance  Co.,  101  id.  362  ;  Bradshaw  v.  Insurance  Co.,  137 
id.  l.-)7." 

Compare  Cooper  v.  Shuttleworth,  25  L.  J.  Ex.  114. 


SECT.  I.l  COOMBE  V.    GREENE.  707 

cooMBE  V.  grp:ene. 

In  the  Exchequer,  May  8,  1843 

[liejxn-ted  in  11  Meeson  ^  Welsby,  480.] 

Covenant.  The  declaration  stated,  that  theretofore,  to  wit,  on  th<! 
23d  of  April,  1832,  by  a  certain  indenture  then  made  between  the 
plaintiff  of  the  one  part,  and  the  defendant  of  the  other  part  (profert). 
the  plaintiff,  for  the  considerations  therein  mentioned,  did  demise,  ifec, 
to  the  defendant,  his  executors,  &c.,  aU  that  messuage  or  tenement,  with 
the  barn,  stable,  and  buildings,  and  several  closes  of  land,  «&c.,  therein 
described,  for  the  term  of  ten  jears,  at  the  rent  of  100/.  by  four  quar- 
terly pa}'ments.  And  the  defendant  did,  for  himself,  his  heirs,  executors, 
&c.,  thereby  covenant  with  the  plaintiff,  her  heirs,  executors,  &c.,  that 
he,  the  defendant,  his  executors,  &c.,  should  and  would  la}'  out  and 
expend  the  sum  of  100/.,  being  equivalent  to  the  first  year's  rent  for 
the  said  demised  premises,  in  substantial  and  beneficial  improvements 
of  and  additions  to  the  said  messuage  or  dwelling-house,  and  in  the 
substantial  and  permanent  repairs  thereof,  under  the  direction  or  with 
the  approbation  of  some  competent  surve3'or,  to  be  named  by  and  on 
the  i)art  of  the  said  plaintifi",  her  heirs  and  assigns.  The  lease  also 
contained  a  general  covenant  to  repair,  which  was  set  out.  Breach, 
that  the  defendant  did  not  nor  would,  after  the  making  of  the  said 
indenture  and  during  the  continuance  of  the  said  demise,  or  at  anj' 
other  time,  laj'  out  and  expend  the  sum  of  100/.,  or  any  part  thereof, 
in  substantial  and  beneficial  improvements  of  and  additions  to  the 
messuage  or  dwelling-house,  or  in  the  substantial  and  permanent  repairs 
thereof,  under  the  direction  or  with  the  approbation  of  a  competent  sur- 
veyor, to  be  named  b}'  and  on  the  part  of  the  said  plaintiff,  her  heirs  or 
assigns,  or  otherwise  according  to  the  covenant  in  that  behalf,  but  on 
the  contrary  thereof,  the  defendant,  after  the  making  of  the  said  indent- 
ure, and  during  the  continuance  of  the  said  demise  and  since,  whollj' 
neglected  and  refused  so  to  do,  although  the  said  plaintiff  always  during 
the  said  term  was  ready  and  willing  to  appoint  a  competent  survej'or 
to  approve  of  such  substantial  and  beneficial  improvements  of  and 
additions  to  the  said  messuage,  of  which  the  said  defendant  during  all 
that  time  had  due  notice. 

Special  demurrer,  assigning  for  causes,  inter  alia,  that  it  is  not  alleged 
in  the  said  count,  that  the  plaintiff  has  ever  named  a  competent  or  any 
survej'or,  under  whose  direction  or  approbation  the  defendant  might  or 
could  have  laid  out  and  expended  the  said  sum  of  money  in  repairing 
the  said  premises  according  to  the  said  covenant ;  that  it  is  not  alleged 
or  shown  that  the  plaintiff  was  ready  and  willing  to  name  a  surx-eyoj 
iiccording  to  the  said  covenant ;  that  it  is  not  alleged  that  the  plaintif} 


708  COOMBE  V.    GKEENE.  [CHAP.  V. 

e\  I  r  otfored  to  name  a  sun^eyor,  to  direct  or  approve  of  the  laying  out 

and  expenditure  of  the  said  money  b}'  the  defendant,  &c. 

Joinder  in  demurrer. 

The  defendant's  points  marked  for  argument  were  as  follows :  — 

The  defendant  will  contend  that  the  bi'each  is  had,  because,  inasmuch 
as  the  improvements  of  and  additions  to  the  messuage  mentioned  in  the 
ileclaration  were  to  be  done  under  the  direction  of  a  surveyor  to  be 
;i;imed  by  the  plaintiff,  the  naming  of  the  surveyor  by  the  plaintill'  waa 
a  condition  precedent  to  the  performance  of  the  covenant  on  the  part  of 
ilie  defendant,  and  that  the  said  first  breach  is  bad  for  not  avernng  per- 
formance,  or  some  dispensation  of  performance,  b}'  the  plaintilf,  of  sucli 
condition  precedent.  That  if  the  naming  of  a  surveyor  by  the  plaintitT 
was  not  a  condition  precedent  to  the  defendant's  performance  of  tiie 
covenant,  still,  if  any  improvements  or  additions  were  made  by  the 
defendant,  the  naming  of  a  surveyor  by  the  plaintiff,  and  the  disap- 
proval of  such  improvements  or  additions  by  such  surveyor,  were 
conditions  precedent  to  an}'  right  of  action  in  the  plaintiff  on  the 
said  covenant ;  and,  on  the  other  hand,  if  no  improvements  or  additions 
whatever  were  made,  the  said  first  breach  is  too  large,  uncertain,  and 
ambiguous. 

The  plaintiff's  points  for  argument  were  :  The  plaintiff  will  contend 
that  the  naming  of  a  survejor  b}-  the  plaintiff  was  not  a  condition  pre- 
cedent, and  that  it  was  not  necessary  to  aver  performance  or  dispen- 
sation of  performance  by  the  plaintiff  of  the  said  supposed  condition 
precedent;  but  that  the  breach  assigned  is  good  in  all  respects,  and  not 
open  to  the  objections  or  any  of  them  set  forth  in  the  demurrer  and 
{)oints  for  argument  made  by  the  defendant. 

Bovill,  in  support  of  the  demurrer.  The  objection  is,  that  the  decla- 
ration does  not  show  that  any  surveyor  was  appointed,  and,  until  a 
surve3'or  was  appointed,  there  could  be  no  breach  on  the  part  of  the 
defendant.  The  money  was  to  be  laid  out  under  the  du'ection  of  a 
surveyor  to  be  appointed  bj*  the  plaintiff,  which  was  a  condition 
precedent,  and,  until  he  was  so  appointed,  the  covenant  could  not  be 
[)erformed  by  the  defendant ;  and  it  is  not  enough  to  aver  a  readiness 
and  willingness  to  appoint  a  surveyor,  because  the  defendant  had 
nothing  to  do  with  the  appointment :  it  ought  to  have  been  shown 
distinctly  that  an  ai)pointment  had  been  made.  As  it  is,  the  declara- 
tion does  not  show  that  the  defendant  has  broken  his  covenant. 

OgU,  contra.  The  general  covenant  to  repair  is  not  controlled  by 
the  appointment  of  a  sun-e^-or ;  and  there  might  be  cin^umstanees 
under  which  the  plaintiff  might  be  entitled  to  maintain  an  actio'i. 
although  a  survej'or  had  not  been  appointed.  Suppose  the  defendant 
uad  wilfully  damaged  or  pulled  down  any  part  of  the  dwelling-house, 
could  not  the  landlord  have  maintained  an  action  for  dilapidations, 
without  a  surveyor  having  been  appointed  ?  In  such  a  case  the  tenant 
would  be  bound  to  rebuild  it,  and,  in  the  event  of  his  neglecting  to  do 
so,  he  would  be  liable  to  an  action  on  the  covenant. 


SECT.    I.]  HAWKINS    V.    GMAHAM.  709 

Pek  CuKiAM.  The  plaintiff  has  declared  on  a  covenant  b}'  which 
the  defendant  undertook  to  expend  the  sum  of  100/.  in  substantial 
improvements  of  and  additions  to  the  dwelling-house,  and  in  the  sub- 
stantial repair  thereof,  under  the  direction  and  with  the  approliation  of  a 
surveyor.  Now  the  appointment  of  a  surveyor  was  a  preliminary  step, 
for  until  one  was  appointed  he  could  not  give  directions  as  to  how  the 
money  was  to  be  expended.  The  defendant  could  not  fulfil  his  part  of 
the  contract  without  the  approbation  of  a  surveyor,  who  was  to  direct 
and  approve  of  his  proceedings.  The  appointment  of  a  sun'eyor  is, 
therefore,  a  condition  precedent  to  his  hability  to  exi>end  the  100/.  ;  and, 
as  the  declaration  does  not  aver  an}'  such  appointment  to  have  t^ken 
place,  it  is  bad,  and  there  must  be  Judgment  for  the  defendant,* 


GARDNER   C.  HAWKINS  v.  JOHN   C.  GRAHAM. 

Supreme  Judicial  Court  of  Massachusetts,  March  22  —  May  11, 

1889. 

[Reported  in  149  Massachusetts,  284.] 

Contract  for  breach  of  an  agreement  in  writing,  which  was  as 
Jbllows  :  — 

Philadelphia,  December  21,  1885. 
Mr.  John  C.  Graham  : 

I  do  liei'ebv  agree  that  for  and  in  consideration  of  the  sum  of 
fifteen  hundred  and  seventy-five  (1,575)  dollars,  to  be  paid  me  upon 
tlie  satisfactory  completion  of  the  following  system  of  heating  to  be 
estal)lished  in  your  new  mills,  located  at  the  northeast  corner  of  Nine- 
teenth and  Hamilton  streets,  Philadelphia,  Penn.,  as  follows,  viz. :  to 
furnish  and  set  up  (no  foundations  included)  in  complete  and  first-class 
working  order,  one  steam  fan,  having  an  engine  affixed  thereto  of  6h 
X  7  inch  cylinder  of  first-class  workmanship  anrl  material,  together 
with  a  heater  containing  a  sufficient  and  ample  quantity  of  one-inch 
wrought-iron  steam  piping,  pro[)erly  applied  on  tlie  inside  of  a  wrought- 
iron  casing,  all  of  wliich  to  be  erected  in  proper  working  order  in  such 
portions  of  the  buildings,  where  found  most  convenient  for  the  estab- 
lisliment  and  where  directed  by  yourself. 

The  system  of  heating  to  be  entirely  dependent  upon  the  exhaust 
steam  from  your  engine  at  an  indication  of  40  II.  P.,  and  to  be  of  such 
construction  as  to  readily  as  well  as  easily  heat  or  raise  the  temperature, 
at  any  point  or  portion  of  the  entire  buildings  into  which  heat  from  said 
heater  may  be  conducted,  to  the  temperature  of  seventy  degrees  (70°) 
Fahr.  in  the  coldest  weather  that  may  be  experienced  ;  and  further,  that 
the  application  of  said  system  is  to  avoid  any  back  pressure  upon  the 


710  HAWKINS   V.    GRAHAM.  [CHAP.   V. 

mill  engine,  or  not  increase  any  that  may  exist  when  m}'  heater  is 
attached,  and  that  the  erection  and  construction  of  the  vertical  pipes 
(we  have  arranged  for  one  line  of  pipes  from  the  vertical  standpipes 
already  12"  decimetres  and  shall  not  attach  an}' more  unless  found 
necessar}',  as  explained  to  you,  they  being  the  only  kind  required)  shall 
be  executed  in  accordance  with  the  plans  and  specifications  prepared 
b}'  myself  and  under  m}-  personal  supervision  and  direction. 

Further,  the  entire  work  is  to  be  finished  within  eighteen  (18)  days 
from  date  of  this  contract,  either  by  permanent  or  temporary-  means ; 
if  teniporar}',  no  extra  charge  whatsoever  to  be  made,  excepting  such 
charges  on  the  temporary  machine  as  regards  freight  to  and  from  our 
works,  and  clearing  up.  It  is  further  declared,  and  distinctly  under- 
stood, that  in  the  event  of  my  not  being  able  to  properly  heat  ever\^ 
portion  of  the  buildings  as  hereinbefore  provided  for,  and  in  accordance 
with  the  requirements  as  above  set  forth,  upon  a  ten  (10)  daj-s'  notice 
from  yourself  to  the  effect  that  the  buildings  are  not  being  properly 
and  sufficiently  heated,  and  I  cannot  so  heat  it  in  ten  days  thereafter, 
I  shall  and  will  at  m}'  own  expense  remove  all  the  machines  and  appur- 
tenances belonging  to  the  system,  leaving  the  entire  mill  in  a  condition 
equal  to  that  prior  to  the  introduction  of  the  same.  In  this  event,  no 
charges  of  any  kind  will  be  made  b\'  me  on  account  of  any  of  the  afore- 
said work ;  it  being  distinctly  understood  that  the  providing  of  the 
entire  system  is  to  be  done  at  my  own  risk  absoUitel}'.  In  the  event  of 
the  system  proving  satisfactory,  and  conforming  with  all  the  require- 
ments as  above  provided  for,  the  sum  of  $1,575  as  above  provided  for 
to  be  paid  me,  after  such  acknowledgment  has  been  made  bj'  the  owner 
or  the  work  demonstrated. 

Gardner  C.  Hawkins. 

At  the  trial  in  the  Superior  Court,  before  Brigham,  C.  J.,  there  was 
evidence  that  the  plaintiff  made  the  offer  contained  in  the  above  agree- 
ment, and  that  the  defendant  accepted  such  offer. 

The  defendant  contended  that  all  the  words  of  the  contract  were  to 
be  taken  into  consideration  in  its  interpretation  ;  that,  in  addition  to 
the  other  requirements  of  the  contract,  the  system  of  heating  must  prove 
satisfactory  to  the  defendant ;  and  that  not  till  the  satisfactory  comple- 
tion of  the  system  and  its  proving  satisfactory  to  the  defendant  was 
anything  due  to  the  plaintiff;  and  the  defendant  offered  evidence,  not 
only  that  the  system  would  not  and  did  not  do  the  heating  as  guaran- 
teed, but  that  it  did  not  prove  satisfactory  to  the  defendant,  and  that  it 
had  not  been  completed  satisfactorilj-  to  him,  and  such  acknowledg- 
ment had  never  been  made  b}'  him. 

The  judge  ruled  that  this  contract  did  not  come  within  the  scope  of 
the  case  of  Brown  v.  Foster,  113  Mass.  136,  and  similar  cases,  and 
that  if  the  plaintiff  had  fulfilled  his  contract  in  the  other  particulars 
required,  he  was  entitled  to  recover,  notwithstanding  the  dissatisfaction 
of  the  defendant ;  that  under  the  contract  the  plaintiff  was  not  bound 
to  make  the  system  satisfactory  to  the  defendant,  and  that  evidence  on 


SECT.    T.]  HAWKINS   V.   GRAHAM.  711 

that  point  was  immaterial ;  and  that  the  trial  should  proceed  on  the 
theory  that  the  satisfaction  of  the  defendant  was  substantially  eliminated 
from  the  case. 

The  plaintiffs  evidence  showed  that  the  temperature  of  the  different 
stories  of  the  defendant's  mill,  which  was  one  hundred  and  ninety-six 
feet  long  by  fifty  feet  wide,  and  seventj^-five  feet  high,  varied,  and  that 
the  temperature  near  where  the  hot  air  entered  the  rooms  was  higher 
b\'  several  degrees,  in  some  instances  as  much  as  ten  degrees,  than  in 
the  more  remote  portions  of  the  rooms,  the  hot  air  being  introduced 
into  the  rooms  at  onl}'  one  place,  at  the  end  of  each  room. 

The  judge  gave  no  instructions  to  the  jury  on  the  question  of 
satisfaction. 

The  jury  returned  a  verdict  for  the  plaintiff;  and  the  defendant 
alleged  exceptions. 

A.  Hemenway  &  F.  L.  Washburji,  for  the  defendant. 

S.  Lincoln^  for  the  plaintiff. 

Holmes,  J.  The  only  question  in  this  case  is  whether  the  written 
agreement  between  the  parties  left  the  right  of  the  plaintiff  to  recover 
the  price  of  the  work  and  materials  furnished  by  him  dependent  upon 
the  actual  satisfaction  of  the  defendant.  Such  agreements  usually  are 
construed,  not  as  making  the  defendant's  declaration  of  dissatisfaction 
conclusive,  in  which  case  it  would  be  difficult  to  sa}*  that  they  amounted 
to  contracts  (Hunt  v.  Livermore,  5  Pick.  395,  397),  but  as  requiring 
an  honest  expression.  In  view  of  modern  modes  of  business,  it  is  not 
surprising  that  in  some  cases  eager  sellers  or  selling  agents  should  be 
found  taking  that  degree  of  risk  with  unwilling  purchasers,  especially 
where  taste  is  involved.  Brown  v.  Foster,  113  Mass.  136;  Gibson  v. 
Cranage,  39  Mich.  49  ;  Wood  Reaping  &  Mowing  Machine  Co.  v. 
Smith,  50  Mich.  565  ;  Zaleski  v.  Clark,  44  Conn.  218;  McClure  Bros. 
V.  Briggs,  58  Vt.  82  ;  Exhaust  Ventilator  Co.  v.  Chicago,  Milwaukee, 
&  St.  Paul  Railway,  66  Wis.  218;  Seeley  v.  Welles,  120Penn.  St.  69. 
Singerly  v.  Thayer,  108  Penn.  St.  291 ; 'Andrews  v.  Belfield,  2  C.  B. 
(n.  s.)  779.' 

Still,  when  the  consideration  furnished  is  of  such  a  nature  that  its 
value  will  be  lost  to  the  plaintiff,  either  wholly  or  in  great  part,  unless 
paid  for,  a  just  hesitation  must  be  felt,  and  clear  language  required, 
before  deciding  that  paj'ment  is  left  to  the  will,  or  even  to  the  idiosyn- 
crasies, of  the  interested  party.     In  doubtful  cases,  courts  have  been 

1  Andrews  v.  Belfield,  2  C.  B.  N.  s.  779  ;  Silsby  Mfg.  Co  v.  Chico,  24  Fed.  Rep. 
893  ;  Campbell  Printing  Press  Co.  v.  Thorp,  36  Fed.  Rep.  414 ;  Hallidie  v.  Sutter  St 
Ry.  Co.,  63  Cal.  575 ;  Goodrich  v.  Nortwick,  43  111.  445  ;  Buckley  v.  Meidroth,  93  111 
App.  460;  Piatt  v.  Broderick,  70  Mich.  577  ;  Fire  Alarm  Co.  v.  Big  Rapid.s,  78  Mich. 
67;  Houading  v.  Solomon,  127  Mich.  654;  McCormick  Machinery  Co.  v.  Chesrown, 
33  Minn.  32 ;  Magee  v.  Scott  Lumber  Co.,  78  Minn.  1 1 ;  Gwynne  i'.  Hitchner,  66  N.  J.  L. 
97  ;  Hoffman  v.  Gallaher,  6  Daly,  42  ;  Tyler  v.  Ames,  6  Lans.  280 ;  Gray  v.  Central 
R.  R.  Co.,  11  Hun,  70 ;  Moore  v.  Goodwin,  43  Hun,  534 ;  Haven  v.  Russell,  34  N.  Y. 
Snpp.  292 ;  Rossiter  v.  Cooper,  23  Vt.  522  ;  McClure  i-.  Briggs,  58  Vt.  82  ;  Exhaust 
Ventilator  Co.  v.  Chicago,  &c.  Ry.  Co.,  66  Wis.  218,  69  Wis.  454,  ace. 


T12  HAWKINS    V.    GRAHAM.  [CHAl'.    V. 

inclined  to  construe  agreements  of  this  class  as  agreements  to  do  the 
tiling  in  such  a  way  as  reasonably  ought  to  satisfy  the  defendant. 
Sloan  u.  Hayden,  110  Mass.  141,  143  ;  Braunstein  v.  Accidental  Death 
Ins.  Co.,  1  B.  &  S.  782,  799  ;  Dallman  v.  King,  4  Ring.  N.  C.  105. 

B}'  the  written  proposition  which  was  accepted  by  the  defendant  the 
plaintiff  agrees,  "in  consideration  of  the  sum  of  fifteen  hundred  and 
seventy-five  dollars,  to  be  paid  me  upon  the  satisfactory  completion  of 
the  following  system  of  heating  .  .  .  in  your  new  mills,  .  .  .  to  furnish 
and  set  up,  ...  in  complete  and  first-class  working  order,"  certain 
things.  Then  follow  conditions,  tests,  and  other  undertakings.  Then 
''  it  is  further  declared  .  .  .  that  in  the  event  of  my  not  being  able  to 
properly  heat  every  portion  of  the  buildings  ...  in  accordance  with 
the  requirements  as  above  set  forth,"  upon  ten  days'  notice  "  that  the 
buildings  are  not  properly  and  sufficiently  heated,  and  I  cannot  so  heat 
it  in  ten  days  thereafter,"  the  plaintiff  will  remove  the  machines  at  his 
own  expense.  "  In  this  event,  no  charges  of  any  kind  will  be  made  by 
me  on  account  of  an}-  of  the  aforesaid  work  ;  it  being  distincth-  under- 
stood that  the  providing  of  the  entire  sj'stem  is  to  be  done  at  ra}'  own 
risk  absolutely.  In  the  event  of  the  system  proving  satisfactory,  and 
conforming  with  all  the  requirements  as  above  provided  for,  the  sum 
of  fifteen  hundred  and  seventy-five  dollars  as  above  provided  for  to  be 
paid  me,  after  such  acknowledgment  has  been  made  b}-  the  owner  or 
the  work  demonstrated." 

The  last  words,  "or  the  work  demonstrated,"  offer  an  alternative  to 
the  owner's  acknowledgment.  The}'  imply  that,  if  the  work  is  demon- 
strated, it  is  satisfactor}'  within  the  meaning  of  the  contract,  although 
the  owner  has  not  acknowledged  it.  The  previous  words,  ' '  and  con- 
forming with  all  the  requirements,"  tend  the  same  way.  The  ten  days' 
notice  contemplated  is  not  a  notice  that  the  owner  is  dissatisfied,  but 
that  the  buildings  "  are  not  being  properly  and  suflflciently  heated,"  and 
the  right  to  give  it  is  conditioned  upon  the  plaintiff's  "  not  being  able 
to  properly  heat  every  portion  of  the  buildings,"  etc.  Taking  these 
phrases  with  the  test  prescribed,  that  the  S3'stem  is  "to  readily  as  well 
as  easily  heat  or  raise  the  temperature  at  any  point  ...  to  the  tem- 
perature of  sevent}^  degrees  (70°)  Fahr.  in  the  coldest  weather  that 
may  be  experienced,"  etc.,  we  are  of  opinion  that  the  satisfactoriness 
of  the  S3stem  and  the  risk  taken  by  the  plaintiff  were  to  be  determined 
b}'  the  mind  of  a  reasonable  man,  and  b}'  the  external  measures  set 
forth  in  the  contract,  not  by  the  private  taste  or  liking  of  the  defendant. 

£!xceptiojis  overruled. 


SECT.    I.]  DOLL   V.   NOBLE.  713 


V  CHARLES  DOLL  et  al.,  Respondents,  v.  WILLIAM  NOBLE, 

Appellant. 

New  York  Court  of  Appeals,  June  26  —  October  8,  1889. 

[Reported  in  116  New  York,  230.] 

Brown,  J.  This  action  was  brought  to  recover  a  balance  due  upon 
a  written  contract,  by  which  the  plaintiffs  were  to  do  polishing,  staining, 
and  rubbing  on  the  woodwork  of  two  houses  owned  by  the  defendant, 
and  also  for  certain  extra  work  upon  the  same  houses.  The  defendant 
denied  that  the  contract  had  been  performed  by  the  plaintiffs,  or  that 
anything  was  due  them  from  him. 

The  contract  provided  that  the  work  was  to  be  done  "  in  the  best 
workmanlike  manner,  under  the  supervision  of  William  Packard,  super- 
intendent, and  to  the  entire  satisfaction  of  William  Noble,  the  party  of 
the  first  part,  owner."  The  court  submitted  the  case  to  the  jury  under 
a  general  charge,  to  which  no  exception  was  taken,  and  which  in  sub- 
stance instructed  the  jury  that  "if  the  work  under  the  contract  was 
done  in  the  best  workmanlike  manner,  the  plaintiffs  would  be  entitled 
to  recover,  and  that  the  defendant  could  not  defeat  such  recovery  by 
unreasonably,  and  in  bad  faith,  saying  the  work  was  not  done  to  his 
satisfaction  ;  "  that  while  the  contract  provided  that  it  was  to  be  done 
to  the  owner's  satisfaction,  that  clause  must  be  regarded  as  qualilied  by 
the  other  provisions  of  the  contract  that  it  was  to  be  done  in  the  best 
workmanlike  manner ;  and  that  was  the  test  of  a  correct  and  full  per- 
formance of  the  contract. 

The  evidence  was  conflicting  upon  the  question  whether  the  work 
under  the  contract  was  done  in  a  workmanlike  manner,  and  also  as  to 
the  extra  work.  The  jury,  however,  found  a  verdict  for  the  full  amount 
claimed,  and  we  must  assume  that  the  result  was  correct  unless  the 
court  erred  in  its  construction  of  the  written  agreement.  While  no 
exception  was  taken  to  the  charge  of  the  court  to  wliich  I  have  referred, 
the  defendant  at  the  close  of  the  charge  requested  the  court  to  instruct 
the  juiy  that  the  defendant  was  entitled  under  the  contract  to  have 
plaintiffs  do  the  work  "to  his  entire  satisfaction  before  the  plaintiffs 
became  entitled  to  the  final  payment."  To  which  the  court  responded, 
"  I  so  charge,  subject  to  the  qualification  which  I  have  already  made. 
He  must  not  attempt  to  defeat  a  just  claim  by  arbitrarily  and  unreason- 
ably saying  he  is  not  satisfied.  The  work  must  be  done  according  to 
the  contract."  To  this  ruling  the  defendant  excepted,  and  this  excep- 
tion presents  the  principal  question  in  the  case. 

The  ruling  of  the  court  was  correct.  The  question  was  directly  pre- 
sented in  the  case  of  Bowery  National  Bank  v.  Mayor,  &c.,  63  N.  Y, 
336.  In  that  case  the  certificate  of  the  "water  purveyor"  that  the 
stipulations  of  the  contract  were  performed  was  made  a  condition  pre- 
cedent to  payment.     It  was  conceded  that  the  contract  was  completed 


714  DOLL  V.   NOBLE.  [CHAP.  V. 

and  performed,  but  the  "water  purveyor"  declined  to  give  a  certifi- 
cate. The  plaintiff  was  defeated  in  the  Supreme  Court,  but  in  this 
court  the  judgment  was  reversed,  the  court  saj'ing,  "It  was  necessary 
for  them  (the  plaintiffs)  either  to  prove  upon  the  trial  the  making  of 
such  certificate,  or  to  show  that  it  was  refused  unreasonabl}'  and  in  bad 
faith..  It  was  unreasonable  to  refuse  it  if  it  ought  in  the  contemplation 
of  the  contract  to  be  given.  In  such  contemplation  it  ought  to  have 
been  given,  when,  in  any  fact  and  beyond  all  pretence  of  dispute,  the 
state  of  things  existed  to  which  the  water  purveyor  was  to  certify,  to 
wit,  the  full  completion  of  the  contract  in  each  and  every  one  of  its 
stipulations." 

That  when  the  parties  have  made  the  certificate  of  a  third  person  of 
the  performance  of  the  work  a  condition  precedent  to  payment,  such 
certificate  must  be  produced  or  its  absence  explained  is  the  general 
rule.  Smith  v.  Briggs,  3  Denio,  74.  But  all  the  authorities  recognize 
the  exception  that  when  such  certificate  is  refused  in  bad  faith  or  un- 
reasonably the  plaintiff  ma}'  recover  upon  proof  of  performance  of  the 
contract.  Smith  v.  Brady,  17  N.  Y.  176  ;  Thomas  v.  Fleury,  26  id.  26  ; 
Wyckoff  V.  Meyers,  44  id.  145  ;  Nolan  v.  Whitney,  88  id.  648  ;  United 
States  V.  Robeson,  9  Peters,  328  ;  Smith  v.  Wright,  4  Hun,  652  ;  White- 
man  V.  Mayor,  &c.,  21  id.  121. 

The  reason  for  the  exception  applies  with  much  greater  force  where 
the  work  is  to  be  done  to  the  satisfaction  of  the  part}'  himself  than  to 
cases  where  the  certificate  of  a  third  part}-  is  required.  A  party  cannot 
insist  on  a  condition  precedent  when  he  has  himself  defeated  a  strict 
performance.     Butler  v.  Tucker,  24  Wend.  449. 

In  this  case  Judge  Bronson  well  says:  "The  defendant  does  not 
set  up  that  part  of  the  covenant  which  requires  the  work  to  be  done  to 
his  satisfaction.  As  to  that  it  would  probably  be  enough  for  the  plain- 
tiff to  aver  that  the  work  was  in  all  other  respects  completed  in  pursu- 
ance of  the  contract ;  for  if  the  defendant  was  not  satisfied  with  such  a 
performance  it  would  be  his  own  fault."  See  also  Duplex  Safety  Boilsr 
Co.  V.  Garden,  101  N.  Y.  387. 

None  of  the  cases  cited  b}'  the  appellant  hold  a  different  rule.  Many 
of  them  recognize  the  exception  I  have  pointed  out,  and  those  that  do 
not  are  easily  distinguishable  from  the  case  under  consideration.  It  is 
not  deemed  necessary  to  refer  to  them  more  specifically. 

We  have  examined  the  other  questions  raised  by  the  exceptions,  but 
none  of  them  are  of  sufficient  importance  to  require  discussion. 

The  judgment  should  be  affirmed,  with  costs. 

All  concur.  Judgmoit  affirmed} 

1  Keeler  v.  Clifford,  165  111.  544;  Boyd  v.  Hallowell,  60  Minn.  225;  Barnett 
V.  Sweiiugeu,  77  Mo.  App.  64 ;  Hummel  v.  Stern,  164  N.  Y.  603  ;  Richeson  v.  Mead, 
11  S.  Dak.  639,  ace. 


SECT.    I.] 


WORK   V.   BEACH. 


715 


WORK   ET   AL   V.    BEACH. 
New  York  Supreme  Court,   General  Term,  March  13,  1891. 

[Reported  in  13  New   York  Supplement,  678.] 

Appeal  from  special  term,  New  York  County. 

Action  by  Frank  "Work,  William  E.  Strong,  George  Wood,  and 
Frank  K.  Stiirgis  against  Miles  Beach.  Defendant  and  one  Marston 
had  a  joint  account  with  plaintiffs,  who  were  stock-brokers,  arising  out 
of  purchases  of  stocks  for  tliein  by  plaintiffs,  and  defendant  had  also  an 
individual  account  with  plaintitis  of  the  same  nature.  Plaintiffs  brought 
an  action  against  defendant  and  Marston  on  such  joint  account,  alleg- 
ing that  they  had  advanced  more  money  thereon  than  the  value  of  the 
securities  held  by  them.  Defendant  and  ^Marston  appeared  in  the 
action,  and  contested  the  liability.  Pending  the  action,  the  plaintiff 
Sturgis  and  defendant  had  an  interview,  in  which,  after  defendant  had 
explained  his  embarrassed  financial  condition,  Sturgis  proposed  that,  if 
defendant  would  authorize  plaintiffs  in  writing  to  sell  the  securities  held 
b3'  ihem  m  both  the  accorints,~and  consolidate  the  two  in  Jo  one  account, 
"and  would  then  in  writing  admit  the  correctness  of  the  aeDit  balance 
on  that  account,  anif  agree  indivitTually  to  pay  4^hat  bdlaiiOe  when  he 
SEould  be~able  to^o_80^,  jplaintiffs  would  discontinue  tTie  action  on~the 
joint  account,  would  sell  the  securities,  and  consolidate  the  accounts, 
anrT  would  allow  the  consolidated  account  to  stand  until  defendant 
should  be  able  to  pay  such  balance.  At  this  time  the  securities  held 
by  plaintiffs  on  defendant's  individual  account  were  worth  much  more 
than  the  amount  due  to  plaintiffs  on  that  account.  As  a  result  of  the 
interview,  defendant  wrote  to  plaintiffs  a  letter,  saying:  "  It  is  my  wish 
that  you  should  sell,  when  favorable  opportunity  offers,  the  following 
securities  in  my  accounts  ;  "  and  after  specifying  tiie  securities,  con- 
tinued as  follows:  "  ^Yjie"  this  is  done,  [jlease  consolidate  my  two 
accounts  into  the  one  st^nain»_in  my  owii^ameT^amriet  me  have  a 
St^temenrpf""niy"Tndeb^^  to  your  firm/    I  will  then  write  a  letter.,.-- 

to  you,  stating  my  obligations  to  pay  this  sum  when  I  can  do  so,  in 
accordance  with  our  agreement  on  Saturday-  last."  This  letter  was" 
drafted  by  Sturgis,  and  was  cUpted  and  signed  bj^defendant  as  drafted, 
except  that  defendant  added  the  final  clause,  "  in  accordance  with  our 
agreement  on  Saturday  last."  Plaintiffs  sold  the  securities,  and  sent 
defendant  a  final  statement  of  his  account,  showing  the  amount  due 
them  as  $14,570.68  ;  and  in  their  letter  to  him  inclosing  this  statement, 
wrote :  "  Will  you  now,  as  formerly  agreed,  write  to  us  a  letter  stating 
3'our  liabilit}'  for  this  debit  balance,  joining  with  it  an  assurance  that 
when  able  you  will  discharge  the  debt?  We  beg  to  add  that  we  will 
be  glad  to  listen  to  any  pro[)osition  looking  to  a  final  adjustment  of  the 
account."  Some  10  days  later  plaintiffs  again  wrote  to  defendant: 
"'  We  are  without  any  reply  from  you  to  our  letter  of  recent  date.     Will 


716  WORK   V.   BEACH.  [CHAP.   V. 

j-on  kindl}-  write  to  us,  as  previously  agreed,  and  state  the  facts  of  the 
terms  on  which  our  financial  relations  now  stand?  "  To  this  defendant 
replied :  "  I  have  received  3'our  final  statement  of  account,  showing 
balance  your  due,  in  accordance  with  our  agreement.  To  further  com- 
plete compliance,  I  write  to  sa}'  that  I  will  pay  such  balance  when  I  shall 
be  able  to  do  so."  Nearly  three  years  thereafter  plaintiffs  made  a  demand 
on  defendant  for  payment,  and,  no  payment  being  made,  brought  this 
action.  The  original  complaint  contained  no  averment  that  defendant 
was  then  able  to  pay,  and  a  demurrer  thereto  was  sustained.  See 
former  decision,  6  N.  Y.  Supp.  27.  The  complaint  was  amended,  and, 
on  trial  liy  the  court,  a  jur^-  having  been  waived,  it  appeared  that 
defendant,  at  the  time  the  promise  to  pay  was  given,  and  continuously' 
since  that  time,  received  a  salary'  as  judge  of  $1,250  per  month,  out 
of  which  he  saved  nothing.  Judgment  was  rendered  for  defendant, 
dismissing  the  complaint.  See  decision,  12  N.  Y.  Supp.  12.  From 
this  judgment  plaintiffs  appeal. 

Argued  before  Van  Brunt,  P.  J.,  and  Daniels  and  O'Brien,  JJ. 

Henry  S.  J^ennett,  for  appellants. 

Avgnstits  C.  Broxon^  for  respondent. 

O'Brien,  J.  The  appellants  claim  that  it  was  error  upon  the  part 
of  the  trial  judge  to  assume  that  the  promise  made  by  the  defendant  is 
the  cause  of  action,  and  insist  that  the  pleadings  and  the  proof  show 
it  to  be  an  action  upon  an  account  stated  and  settled.  This  precise 
question  was  presented  upon  a  former  appeal  in  this  case  (6  N.  Y. 
Supp.  27),  and  it  was  held  by  this  court,  upon  an  examination  then  of 
tlie  complaint,  as  it  now  more  clearl}'  is  made  to  appear  by  the  proof 
offered  upon  the  trial  to  sustain  the  allegations  of  the  amended  com- 
plaint, "  that  the  original  debt  was  discharged  and  anew  obligation 
created,  and  that  the  promise  to  pa}-  *  when  able  to  do  so,'  upon  which 
this  action  is  founded,  was  conditional ;  and  that,  to  entitle  the  plaintiffs 
to  recover  tliereon,  they  must  plead  and  prove  the  fact  of  such  ability." 
Upon  the  lines  thus  indicated  the  learned  trial  judge  proceeded  with 
the  trial,  and  correctl}'  ruled  that  plaintiffs  were  not  entitled  to  judg- 
ment upon  pleadings  as  upon  an  account  stated,  settled,  and  admitted ; 
and  in  an  opinion  remarkable  for  its  force  and  clearness  he  points  out 
the  error  into  which  the  plaintiffs  seem  to  have  fallen  "in  com[)leteh' 
ignoring  the  valuable  consideration  which  upon  the  settlement  the 
plaintiffs  received  from  the  defendant  for  their  acceptance  of  this  very 
conditional  promise."  We  might  well  be  content  to  allow  this  appeal 
to  stand  upon  the  decision  and  opinion  of  the  learned  trial  judge,  who, 
in  our  judgment,  correctly  disposed  of  every  question  presented.  It 
would  be  useless  to  go  over  the  ground  traversed  bv  him,  and  discuss 
the  principles  laid  down  in  the  cases  cited  in  support  of  his  rulings,  and 
which,  with  a  single  exception,  included  all  the  decisions  that  could 
be  found,  both  American  and  English,  bearing  upon  the  issues  between 
the  parties.  This  exception  (the  case  of  Tebo  v.  Robinson,  100  N.  Y. 
29,  2  N.  E.  Rep.  383)   seems  formerly  to  have  been  overlooked  by 


SECT.   I.]  WOKK   V.    BEACH.  717 

counsel,  for  it  was  not  called  to  the  attention  of  this  court  upon  the 
former  appeal,  nor  to  the  attention  of  the  judge  upon  the  trial.  The 
course  of  reasoning  pursued  b}-  the  latter  is  nevertheless  directly  in  the 
line  taken  by  the  court  of  appeals  in  Tebo  v.  Robinson,  supra,  which 
thus  becomes  an  argument  and  an  authority  to  support  the  judgment 
rendered.  The  action  of  Tebo  v.  Robinson  was  brought  upon  a 
promise  contained  in  a  letter  written  bj-  defendant  to  plaintiff  in  Octo- 
ber, 1872.  Of  so  much  of  the  letter  as  is  material  the  following  is 
a  cop3' :  "You  will  find  enclosed  one  hundred  dollars,  with  interest, 
which  you  so  kindly  loaned  me  one  3'ear  ago ;  and  I  hope  and  trust 
that  I  shall  shortly  be  able  to  inclose  3'ou  one  thousand  dollars, 
which  you  also  kindly  loaned  me,  hoping  at  the  same  time  you  may 
have  no  need  of  it  until  such  time  as  I  shall  be  able  to  pa}-  it ;  and  you 
ma}'  rest  assured  you  shall  have  the  mone}'  the  moment  I  am  able  to 
pay  it."  The  complaint  averred  ability  to  pay  prior  to  the  commence- 
ment of  the  suit.  This  was  not  denied  in  the  answer.  The  sole  defence 
set  up  in  the  answer  was  the  statute  of  limitations.  In  writing  the 
opinion  of  the  court,  Andrews,  J.,  says:  "The  cause  of  action  on 
this  promise  accrued  as  soon  as  the  defendant  had  the  pecuniar}'  ability 
to  pay  his  debt.  Proof  that  the  defendant  at  a  particular  time,  subse- 
quent to  October  19,  1872,  had  property  equal  to  or  greater  than  the 
amount  of  the  plaintiff's  debt,  would  not  conclusively  show  that  he  was 
able  to  pay  the  debt  within  the  meaning  of  the  promise  so  as  to  give 
a  right  of  action.  This  fact  might  be  consistent  with  utter  insolvency 
on  the  part  of  the  defendant,  or  the  property  might  be  of  such  a  charac- 
ter that  to  deprive  him  of  it  would  take  away  his  means  of  livelihood  as 
effectually  as  depriving  a  mechanic  of  his  tools  would  deprive  him  of 
means  of  support.  A  promise  to  pay  when  able  is  to  be  reasonably 
interpreted.  On  the  one  hand,  it  does  not  imply  ability  to  pay  without 
embarrassment,  or  even  without  crippling  the  debtor's  resources  or 
business ;  while,  on  the  other  hand,  ability  to  pay  cannot  be  fairly 
implied  while  the  debtor,  although  he  may  be  in  possession  of  property 
sufficient  to  pay  the  particular  debt,  is  plainly  insolvent,  or  when  pay- 
ment, if  enforced,  would  strip  him  of  his  means  of  support.  The  cred- 
itor or  a  promisee  of  this  kind,  reposes  very  much  on  the  good  faith  of 
the  promisor.  He  generally  relies  upon  the  debtor's  making  known 
any  change  in  his  pecuniary  circumstances  which  enables  him  to  pay 
the  debt,  although  there  is  no  duty  of  voluntary  disclosure.  It 
is  not  contemplated  by  the  parties  that  the  debtor  will  pay  the  debt  out 
of  earnings  necessary  for  the  support  of  hiuisolf  or  his  family,  or  that 
he  will  pay  the  particular  debt  to  the  prejudice  of  other  creditors  whose 
debts  are  absolute  and  unconditional."  In  language  of  similar  import 
Mr.  Justice  Barrett  in  this  case  says:  "What  is  here  meant  b}'' 
'ability  to  pay?'  ...  It  may  fairly  be  deduced  from  the  cases  that 
the  plaintiffs  were  bound  to  prove  the  defendant's  al)ility  to  jiay  at  the 
commencement  of  the  action,  and  that  such  ability  could  be  shown  by 
circumstances  as  well  as  by  direct  evidence.     Beyond  this  there  is  no 


718  WORK   V.     BEACH.  [CHAP.    V. 

fixed  rule.  Each  case  must  depend  upon  the  terms  of  the  contract, 
read  in  the  light  of  the  surrounding  circumstances.  Substantial  proof 
of  ability  within  the  intent  and  meaning  of  the  parties  must  be  given  ; 
and,  although  that  proof  may,  in  the  nature  of  things,  be  diflScult,  it  is 
none  the  less  requisite.  By  taking  a  conditional  obligation  —  the  con- 
dition itself  being  founded  upon  a  valuable  consideration  —  the  obligee 
accepts  the  burden  imposed  upon  him  of  establishing  the  fulGlment  of 
the  condition  before  he  can  recover.  .  .  .  The  understanding  un- 
doubtedly was  that  the  defendant  should  be  required  to  pay  only  when 
his  circumstances  were  changed  for  the  better,  either  b}'  an  acquisition 
of  fortune  or  a  decrease  of  obligation."  12  N.  Y.  Supp.  16.  It  was 
therefore  correctly  ruled  that  it  was  incumbent  on  plaintiffs  to  show 
some  change  for  the  better  in  defendant's  circumstances  at  a  period 
^subsequent  to  the  time  when  the  promise  was  given.  Such  a  construc- 
tion, finding  support,  as  it  does,  both  upon  principle  and  authorit}-,  was 
given  to  the  contract  between  the  parties  upon  the  trial.  No  evidence 
was  presented  to  warrant  the  conclusion  that  defendant's  circumstances 
had  improved,  or  showing  his  ability  to  pay.  He  was  in  receipt  of  his 
salar}-  as  judge  when  the  contract  was  made.  He  received  it  then,  as 
now,  monthly  ;  and  the  testimon}-  shows  that  out  of  it  he  saved  nothing. 
It  is  useless  to  speculate  as  to  what  defendant  could  or  should  have 
done ;  the  question  being,  did  the  plaintiffs  prove  detendant's  ability 
to  respond  within  the  meaning  of  the  contract?  The  conclusion  reachea 
was  justified  by  the  proof. 

Assuming,  however,  that  the  principles  of  law  were  correctly  applied, 
it  is  claimed  that  the  court  en-ed  in  permitting  the  introduction  and  giv- 
ing effect  to  evidence  varying  the  written  contract  as  set  forth  in  the 
letters,  by  allowing,  after  objection,  the  Introduction  of  the  complaint 
in  the  original  action  b}-  plaintiffs  on  the  joint  account,  and  by  incor- 
porating in  tlie  fifth  finding  the  conversation  between  the  parties  as 
evidence  of  what  the  agreement  was  ;  thus  modifying,  as  claimed,  the 
letters  which  the  parties  wrote,  and  in  which  the}'  intended  to  express 
the  agreement  which  they  made.  In  other  words,  the  claim  is  that  the 
court  thus  interpolated  the  conversation  which  led  to  the  original  agree- 
ment into  tlie  agreement  itself  In  answer  to  this  objection  it  is  only 
necessary  to  remember  that  in  the  letter  of  December  15,  1884,  written 
by  the  defendant  to  the  plaintiffs,  in  which  he  directs  them  to  sell  the 
securities  mentioned  in  the  letter,  he  thus  concludes :  "  When  this  is 
done,  ...  I  will  then  write  a  letter  to  you,  stating  my  obligation  to 
pay  this  sum  when  I  can  do  so,  in  accordance  with  our  agreement  on 
Saturday  last."  It  will  thus  be  seen  that  in  the  letter  itself,  which  is 
one  of  the  letters  referred  to  by  the  appellants  as  containing  the  agree- 
ment between  the  parties,  it  would  appear  that  the  agreement  itself 
was  made  on  that  Saturday  ;  that  the  letters  did  not  embodv  the  entire 
contract,  and  this  justified  the  reception  of  evidence  tending  to  prove 
what  was  the  entire  agreement.  The  effect  of  the  construction  given 
to  the  agreement  by  the  judge  necessarily  resulted  in  excluding  test*- 


SECT.  I.]  EDGE   V.   BOILEAU.  710 

monj  offered  by  the  plaintiffs  tending  to  show  how  much  the  defendant 
could  have  paid,  if  anything,  less  his  personal  expenses,  and  as  to 
whether  he  was  not  during  that  period  able  to  save  sufficient  from  his 
salary  to  pay  any  portion  of  the  claim,  and  why  he  did  not  devote  any 
portion  of  the  difference  between  his  individual  expenses  and  the  amount 
of  his  salary  to  pay  this  obligation.  As  already  said,  wliat  he  might, 
could,  or  should  have  done  was  not  the  question  at  issue.  ^y.Jthe. 
agreement  between  the  parties  it  was  an  essential  part  of  plaintiffs' 
cause  of  action  to  show  ability  to  pay!  'i  Derei'ore,  after~a  carefuP 
examination  of  the  case  and  exceptions,  we  are  of  opinion  that  no  error' 
was  committed  justifying  a  reversal,  and  that  the  judgment  should  be 
affirmed,  with  costs  and  disbursements.     All  concur.^ 


EDGE   V.   BOILEAU   and   Others. 
In  the  Queen's  Bench  Division,  November  20,   1885. 

[Reported  in  16  Queen's  Bench  Division,  117.] 

Motion  for  a  new  trial  or  to  enter  judgment  for  the  defendants. 

The  action,  which  was  tried  before  Mathew,  J.,  at  the  last  Birming- 
ham Assizes,  was  for  breach  of  a  covenant  for  quiet  enjoyment  con- 
tained in  a  lease  of  premises,  comprising  several  sets  of  offices  and 
business  chambers,  by  the  defendants  to  the  plaintiff.  The  facts  were 
as  follows  : — 

The  lease  contained  covenants  by  the  plaintiff  to  pay  the  rent 
reserved  and  to  keep  the  premises  in  repair,  and  provided  for  re-entry 
by  the  lessors,  if  rent  should  be  in  arrear  for  twenty-one  days,  and 
if  on  demand  thereof  there  should  not  be  sufficient  distress  on  the 
premises,  or  if  the  lessee  should  not  dulj'  observe  the  covenants  on 
his  part  after  three  months'  notice  in  writing  so  to  do.     The  covenant 

1  Cole  V.  Saxby,  3  Esp.  159  ;  Davies  v.  Smith,  4  Esp.  36  ;  Tell  City  Co.  v.  Nees, 
63  Ind.  245;  Stainton  v.  Brown,  6  Dana,  249;  Eckler  v.  Galbraith,  12  Bush,  71  ; 
Denney  v.  Wheelwright,  60  Miss.  733;  Eversou  v.  Carpenter,  17  Wend.  419;  Re 
Knab,  78  N.  Y.  Supp.  292  ;  Nelson  v.  Von  Bonnhorat,  29  Pa.  352  ;  Salinas  v.  Wright.  11 
Tex.  572,  ace. 

Kincaid  v.  Higgins,  1  Bibb,  396,  contra.  See  also  Nunez  v.  Dautel,  19  Wall.  562; 
Works  V.  Hershey,  35  la.  .340;  De  Wolf  v.  French,  51  Me.  420;  Crooker  v.  Holmes, 
65  Me.  195  ;  Lewis  v.  Tipton,  10  Ohio  St.  88  ;  Noland  i;.  Bull,  24  Oreg.  479. 

In  Denney  v.  Wheelwright,  60  Miss.  733,  744,  the  court  said  •  "  The  fault  of  [the 
instruction]  given  for  the  plaintiffs  is  that  it  required  the  defendants  to  prove  not 
only  th.at  the  condition  had  happened  upon  which  the  promises  of  the  plaintiffs  became 
absolute,  but  that  it  continued  up  to  the  commencement  of  the  suit.  If  the  promise 
of  the  plaintiffs  was  to  pay  these  notes  when  or  if  they  became  able,  then  when  they 
became  able  the  promise  became  absolute,  and  a  right  of  action  e.xisted  in  favor  of 
the  defendants  which  would  not  be  lost  by  the  sub.<equent  insolvency  or  inability  of  the 
plaintiffs  to  pay  the  debt.  The  question  was  not  whether  the  plaintiffs  were  at  the 
Institution  of  their  suit  able  to  pay  the  debts,  but  whether  at  any  time  after  their 
promise  it  became  absolute  by  the  happening   of  the  condition." 

See  also  Waters  v.  Thanet,  2  Q.  B.  757. 


720  EDGE   V.   BOILEAU.  [CHAP.   Y. 

for  quiet  enjoyment  was  in  the  usual  terms,  to  the  effect  that  the  lessee 
paying  the  rent  when  due,  and  observing  the  covenants  on  his  part  to 
be  observed,  should  peaceablj'  and  quietly  hold  and  enjoy  the  said 
premises  without  interruption  from  the  lessors  or  persons  claiming 
through  them.  The  plaintiff's  rent  being  in  arrear  and  the  premises 
being  out  of  repair,  the  defendants'  agent,  by  their  authority,  served 
notices  in  writing  on  the  plaintiff's  sub-tenants  of  the  demised  premises 
requiring  them  not  to  pay  to  the  plaintiff  an}'  rent  due  or  thereafter 
to  become  due  to  him,  but  to  pay  the  same  to  the  defendants,  and 
threatening  legal  proceedings  in  default  of  compliance  with  the  notice. 
The  plaintiff,  having  paid  the  rent  in  arrear,  requested  the  defendants 
to  withdraw  the  notices,  complaining  that  they  would  occasion  him 
great  difficulty  in  obtaining  his  rents  from  his  sub-tenants,  but  the 
defendants  refused  to  do  so  because  the  plaintiff  had  not  executed 
certain  repairs  which  they  required  him  to  do.  The  defendants, 
iiovvever,  ultimatel}',  after  an  interval  of  about  two  months,  withdrew 
the  notices.  In  the  meantime  one  of  the  plaintiff's  sub-tenants  paid 
his  rent  to  the  defendants. 

The  plaintiff  brought  his  action  as  above-mentioned,  alleging  loss  of 
rent  and  damage  to  the  value  of  his  property,  by  reason  of  his  title 
being  impugned. 

The  defendants  in  their  defence  (inter  alia)  denied  the  breach 
of  covenant,  pleaded  non-performance  b}^  the  plaintiff  of  conditions 
precedent,  and  paid  into  court  the  rent  so  received  by  them  plus  five 
shillings  in  satisfaction  of  plaintiff's  claim.  The  learned  judge  left 
the  case  to  the  jury,  who  found  a  verdict  for  the  plaintiff  for  100/. 
damages. 

Cliannell,  Q.  C,  and  Graham,  for  the  defendants. 

Hugo^  Young,,  and  Lindsell,  for  the  plaintiff. 

Pollock,  B.  The  plaintiff  claims  damages  for  breach  of  a  covenant 
for  quiet  enjoyment.  The  defendants  deny  that  any  such  breach  has 
taken  place,  and  say  further  that  there  was  a  failure  to  perform  con- 
ditions precedent,  rent  being  in  arrear,  and  the  covenant  to  repair 
not  being  performed.  In  ra}'  judgment  there  is  sufficient  evidence  to 
show  that  there  has  been  a  breach  of  the  covenant  for  quiet  enjo3'ment. 
The  covenant  is  in  the  usual  terms.  The  facts  are  these.  During 
the  plaintiff's  term,  there  being  some  rent  in  arrear,  the  agent  for  the 
defendants,  the  plaintiff's  lessors,  b}'  their  authority  sends  to  the 
tenants  of  the  plaintiff  a  notice  desiring  them  not  to  pay  their  rents  to 
the  plaintiff,  but  to  pay  them  to  the  defendants,  and  threatening  them 
with  legal  proceedings  in  default  of  compliance  with  the  notice.  It  is 
obvious  what  the  probable  results  of  such  a  notice  would  be.  It  is 
impossible,  as  it  seems  to  me,  to  hold  that,  under  the  circumstances 
of  this  case,  and  having  regard  to  what  actually  followed,  this  notice 
can  be  treated  as  no  more  than  a  mere  false  and  idle  claim  or  threat 
of  which  no  notice  might  be  taken.  To  my  mind  there  is  evidence 
of  a  substantial  disturbance  of  the  plaintiff's  quiet  enjoyment  of  the 


SECT.  I.]  GRAY  V.  GARDNER.  721 

property  demised.  The  case  of  Whichcot  v.  Nine,  Brownlow  & 
Goldsborougli,  81,  is  tlie  only  authority  to  which  we  were  referred 
on  this  subject.  When  the  report  of  that  case  is  looked  at,  it  is  very 
short  and  simply  comes  to  this,  that  the  mere  telling  a  tenant  not 
to  pay  his  rent  is  not  necessarily  a  breach  of  the  covenant  for  quiet 
enjoyment.  There  is  nothing  said  as  to  the  circumstances  under 
which  the  man  was  told  not  to  pay  his  rent,  and  it  appears  that  he 
did  pa^-  his  rent  notwithstanding  the  notice.  1  can  understand  that 
there  might  be  circumstances  under  which  such  a  notice  might  be  treated 
as  a  mere  idle  threat  and  as  not  amounting  to  a  breach  of  the  covenant 
for  quiet  enjoyment  because  there  was  no  substantial  interference  with 
the  enjoyment.  Here  I  think  that  there  is  a  substantial  interference 
with  the  rights  of  the  plaintifif,  and  one  which  might  ver\' well  seriously 
affect  the  value  of  his  property.  Then  it  was  contended  that  the 
covenant  for  quiet  enjoyment  and  the  covenants  to  be  performed  by 
the  plaintiff  were  not  to  be  read  independently,  but  as  dependent 
covenants,  and  that  the  payment  of  rent  and  repairing  were  therefore 
conditions  precedent.  I  should  have  thought  that  point  verj'  clear 
even  without  authority.  But  there  ap{>ears  to  be  a  case  directly  in 
point,  viz.,  Dawson  v.  Dyer,  5  B.  &  Ad.  584.  In  that  case  the  same 
argument  was  put  before  the  court  as  in  the  present  case,  and  the 
court  held  the  argument  untenable.  That  case  seems  to  be  conclusive 
in  favor  of  the  plaintiff  on  this  point.  For  these  reason  I  think  the 
application  must  be  refused. 
Manisty,  J.,  concurred. 

Hule  refused} 


B.  — Conditions  Subsequent. 


WILLIAM  GRAY  v.  OLIVER  GARDNER  and  Othebs. 
Supreme  Judicial  Court  of  Massachusetts,  March  Term,  1821. 

[Reported  tn  17  Matsarhtuetti  Reports,  188.] 

Assu^fPsiT  on  a  written  promise  to  pay  the  plaintiff  §5,198.87,  with 
the  following  condition  annexed,  viz.:  "On  the  condition  that  if  a 
greater  quantity  of  sperm  oil  should  arrive  in  whaling  vessels  at  Nan- 
tucket and  New  Bedford,  on  or  between  the  first  day  of  April  and  the 
first  day  of  October  of  the  present  year,  both  inclusive,  than  airived  at 
said  places  in  whaUng  vessels  on  or  within  the  same  term  of  time  the 
last  year,  then  this  obligation  to  be  void."     Dated  April  14,  1819. 

The  consideration  of  the  promise  was  a  quantity  of  oil  sold  by  the 
plaintiff"  to  the  defendants.  On  the  same  day  another  note,  uncondi- 
tional, had  been  given  by  the  di^fcndaiits  for  the  value  of  the  nil,  esti- 

1  Hays  V.  Bickerstaffe,  2  Mod.  34  ;  Dawson  v.  Dver,  5  B.  &  Ad.  584  ;  De  Lancej  r. 

Gauoii'f,  ',)  X.  Y.  ace.     Anonymous,  4  Leon.  50,  contra. 


722  GRAY   V.   GARDNER.  [CHAP.   V. 

mated  at  sixt}'  cents  per  gallon  ;  and  the  note  in  suit  was  given  to 
secure  the  residue  of  the  price,  estimated  at  eighty-five  cents,  to  de- 
pend on  the  contingency  mentioned  in  the  said  condition. 

At  the  ti'ial  before  the  Chief  Justice,  the  case  depended  upon  the 
tjuestion  whether  a  certain  vessel,  called  the  Lad}"  Adams,  with  a  cargo 
of  oil,  arrived  at  ^Nantucket  on  the  first  day  of  October,  1819,  about 
which  fact  the  evidence  was  contradictory.  Tiie  judge  ruled  that  the 
burden  of  proving  the  arrival  within  the  time  was  on  the  defendants* 
and  further  that,  although  the  vessel  might  have,  within  the  time,  got- 
ten within  the  space  which  might  be  called  Nantucket  Roads,  yet  it 
was  necessary  that  she  should  have  come  to  anchor,  or  have  been 
moored,  somewhere  within  that  space  before  the  hour  of  twelve  follow- 
ing the  first  day  of  October,  in  order  to  have  arrived  within  the  mean- 
ing of  the  contract. 

The  opinion  of  the  Chief  Justice  on  both  these  points  was  objected  to 
by  the  defendants,  and  the  questions  were  saved.  If  it  was  wrong  on 
either  point,  a  new  trial  was  to  be  had  ;  otherwise  judgment  was  to  be 
rendered  on  the  verdict,  which  was  found  for  the  plaintiff. 

.Whitman,  for  the  defendants.  As  the  evidence  at  the  trial  was  con- 
tradictory, the  question  on  whom  the  burden  of  proof  rested  became 
important.  We  hold  that  it  was  on  the  plaintiff.  This  was  a  condition 
precedent.  Until  it  should  happen,  the  promise  did  not  take  effect. 
On  the  non-occurrence  of  a  certain  contingent  event,  the  promise  was 
to  be  binding,  and  not  otherwise.  To  entitle  himself  to  enforce  the 
promise,  the  plaintiff  must  show  that  the  contingent  event  has  not 
actually  occurred. 

On  the  other  point  saved  at  the  trial,  the  defendants  insist  that  it 
was  not  required  bj'  the  terms  of  this  contract  that  the  vessel  should  be 
moored.  It  is  not  denied  that  such  would  be  the  construction  of  a 
policy  of  insurance  containing  the  same  expression.  But  ever}'  con- 
tract is  to  be  taken  according  to  the  intention  of  the  parties  to  it,  if 
such  intention  be  legal  and  capable  of  execution.  The  contemplation 
of  parties  to  a  policy  of  insurance  is,  that  the  vessel  shall  be  safe  before 
she  shall  be  said  to  have  arrived.  So  it  is  in  some  other  maritime  con- 
tracts. But  in  that  now  in  question,  nothing  was  in  the  minds  of  the 
parties,  but  that  the  fact  of  the  arrival  of  so  much  oil  should  be  known 
within  the  time  limited.  The  subject-matter  in  one  case  is  safety,  in 
the  other  it  is  information  only.  In  this  case  the  vessel  would  be  said 
to  have  arrived,  in  common  understanding,  and  according  to  the  mean- 
ing of  the  parties. 

F.  O.  Gray,  for  the  plaintiflf. 

Parker,  C.  J.  The  very  words  of  the  contract  show  that  there  was 
a  promise  to  pay,  which  was  to  be  defeated  by  the  happening  of  an 
event,  viz.,  the  arrival  of  a  certain  quantity  of  oil,  at  the  specified 
places,  in  a  given  time.  It  is  like  a  bond  with  a  condition :  if  the 
obhgor  would  avoid  the  bond,  he  must  show  performance  of  the  condi- 
tion.    The  defendants,  in  this  case,  promise  to  pay  a  certain  sum  of 


SECT.   I,]  MOODY   V.   INSURANCE   CO.  723 

money,  on  condition  that  the  promise  shall  be  void  on  the  happening  o'i 
an  event.  It  is  plain  that  the  burden  of  proof  is  upon  thera ;  and  if 
they  fail  to  show  that  the  event  has  happened,  the  promise  remains 
good. 

The  other  point  is  equally  clear  for  the  plaintiff.  Oil  is  to  arrive  at 
a  given  place  before  twelve  o'clock  at  night.  A  vessel  with  oil  heaves 
in  sight,  but  she  does  not  come  to  anchor  before  the  hour  is  gone.  In  no 
sense  can  the  oil  be  said  to  have  arrived.  The  vessel  is  coming  until 
she  drops  anchor,  or  is  moored.  She  may  sink,  or  take  fire,  and  never 
arrive,  however  near  she  may  be  to  her  port.  It  is  so  in  contracts  of 
insurance  ;  and  the  same  reason  applies  to  a  case  of  this  sort.  Both 
parties  put  themselves  upon  a  nice  point  in  this  contract ;  it  was  a  kind 
of  wager  as  to  the  quantity  of  oil  which  should  arrive  at  the  ports  men- 
tioned before  a  certain  period.  They  must  be  held  strictly  to  their 
contract,  there  being  no  equity  to  interfere  with  the  terms  of  it. 

Judgment  on  the  verdict. 


MOODY   V.    INSURANCE    COMPANY.  JA^VJ^^"^ 

Ohio  Supreme  Court,  October  16,  1894. 

[Reported  in  52  Ohio  State,  12.] 

Williams,  J.^  The  polic}'  of  insurance  upon  which  the  plaintiff 
sought  to  recover  in  the  action  below,  provides,  among  its  many  condi- 
tions, that  "  no  liability  shall  exist  under  this  policy  for  loss  or  damage 
in  or  on  vacant  or  unoccupied  buildings,  unless  consent  for  such  vacancy 
or  non-occupany  be  indorsed  hereon."  The  answer  alleges  that  the 
house  insured  by  the  polic\'  was  burned  while  it  was  unoccupied  ;  and, 
thougii  that  allegation  was  denied,  the  court  required  tiie  plaintiff  to 
take  the  burden  of  proving  that  the  building  was  occupied.  That  ac- 
tion of  the  court  is  assigned  for  error,  and  presents  the  first  question 
for  consideration. 

The  court  went  upon  the  theory  that  the  provision  of  the  policy  above 
quoted  constitutes  a  condition  precedent,  the  performance  of  which  was 
put  in  issue  by  the  denial  of  the  averments  of  the  petition.  In  an  action 
on  a  policy  of  fire  insurance  the  plaintiff  may  plead  generally,  as  was 
done  in  this  case,  the  due  performance  of  all  the  conditions  precedent,  on 
his  part,  and  when  the  allegation  is  controverted  the  burden  is  undoulit- 
edly  upon  him  to  show  such  performance.  But  we  do  not  understand 
the  clause  of  the  policy  in  question  to  be  a  condition  of  that  kind.  An 
unexpired  policy  of  fire  insurance,  which  has  been  regularly  issued,  and 
remains  uncancelled,  must,  in  the  absence  of  a  showing  to  the  contrary, 
be  regarded  as  a  valitl  and  effective  policy,  u|)on  which  the  assured  is 
prima  facie  entitled  to  recover  when  the  loss  occurs,  and  the  steps 
necessary  to  establish  it  have  been  taken  ;  and  hence,  the  conditions 
^  A  portiou  ot'  the  opinion  id  omitted. 


724  MOODY    V.   INSURANCE   CO.  [CHAP.   V. 

precedent  in  such  a  policy  include  oul}'  those  affirmative  acts  on  the 
part  of  the  assured,  the  performance  of  which  is  necessar}'^  in  order  to 
perfect  his  right  of  action  on  the  policy,  such  as  giving  notice  and  mak- 
ing proof  of  the  loss,  furnishing  the  certificate  of  a  magistrate  when 
required  bj-  the  terms  of  the  polic}',  and,  it  maj'  be,  in  some  cases,  other 
steps  of  a  like  nature.  Those  clauses  usually  contained  in  policies  of 
insurance,  which  provide  that  the  policy  shall  become  void,  or  its  opera- 
tion defeated  or  suspended,  or  the  insurer  relieved  wholly  or  partiallj- 
from  liability,  upon  the  happening  of  some  event,  or  the  doing,  or  omis- 
sion to  do  some  act,  are  not  in  any  proper  sense  conditions  precedent. 
If  they  may  be  properly  called  conditions,  they  are  conditions  subse- 
quent, and  matters  of  defence,  which,  together  with  their  breach,  must 
be  pleaded  by  the  insurer  to  be  available  as  a  means  of  defeating  a 
recovery  on  the  policy  ;  and  the  burden  of  establishing  the  defence,  if  con- 
troverted, is,  of  course,  upon  the  party  pleading  it.  This  precise  ques- 
tion has  not  heretofore  received  the  consideration  of  this  court,  but 
it  has  been  raised  in  other  states  under  various  clauses  of  insurance 
policies.  In  the  case  of  Louusbury  v.  Insurance  Co.,  8  Conn.  459, 
the  question  was  presented  in  an  action  on  a  policy  of  fire  insurance 
which  provided  "that  the  insurers  vrould  not  be  liable  for  loss  or 
damage,  happening  by  means  of  any  invasion,  insurrection,  riot,  or 
civil  commotion,  or  of  an}'  military  or  usurped  power;  also,  that  if  the 
building  insured  should  be  used,  during  the  term  of  insurance,  for  any 
occupation,  or  for  the  purpose  of  storing  therein  anj-  goods,  denomi- 
nated hazardous  or  extra-hazardous  in  the  conditions  annexed  to  the 
polic}'  (unless  otherwise  speciall}'  provided  for),  the  policy  should  cease 
and  have  no  effect."  It  was  held,  these  were  not  conditions  precedent 
to  the  plaintifif's  right  of  recovery,  but  were  matters  of  defence  to  be 
taken  advantage  of  b}'  pleading.  The  court  in  that  case  say :  "  All 
these  conditions,  if  such  the}'  may  be  called,  are  inserted  in  the  policy 
by  way  of  proviso,  and  not  at  all  as  conditions  precedent.  They  are 
introduced  for  the  benefit  of  the  defendants  ;  and  they  must  be  taken 
advantage  of,  if  at  all,  by  pleading."  In  Newman  v.  Insurance  Co., 
17  Minn.  123,  it  is  held  that:  "  Under  a  stipulation  in  a  policy,  that  if 
the  risk  bo  increased  by  any  means  whatever,  within  the  control  of  the 
insured,  the  insurance  shall  be  void,  the  assured  is  not  to  plead  and 
prove,  affirmatively,  that  it  has  not  been  thus  increased,  but  if  it  has, 
it  is  a  matter  of  defence  to  be  alleged  and  proved  by  defendant."  And 
in  Daniels  v.  Insurance  Co.,  12  Cush.  426,  Chief  Justice  Shaw  lays 
down  the  rule  in  general  terms,  that  if  the  insurers  rely  "either  upon 
the  falsity  of  a  representation,  or  the  failure  to  comply  with  an  exec- 
utory stipulation,  it  is  upon  them  to  prove  it ;  and  it  is  a  question  of 
fact  for  the  jury,  in  either  aspect." 

The  following  among  other  cases  hold  the  same  doctrine :  Insurance 
Co.  V.  Carpenter,  4  Wis.  20  ;  Mueller  v.  Insurance  Co.,  45  Mo.  84  ; 
Insurance  Co.  v.  Crunk,  91  Tenn.  376;  Spencer  v.  Insurance  Associa- 
tioa,  37  N.  E.  Rep.  617 ;  Insurance  Co.  v.  Sisk,  36  N.  E.  Rep.  659. 


SECT.   I.]  SEMMES   V.   HAETFORD  INSUBANCE  CO.  725 

Any  other  rule  would  be  highly  inconvenient,  if  not  impracticable. 
The  clause  of  the  policy  under  which  the  defendant  sought  to  be  relieved 
from  liability  is  but  one  of  a  great  number  of  conditions,  for  the  viola- 
tion of  an}-  of  which  the  insurer  might  also  claim  to  be  relieved  ;  and 
if  the  issue  raised  b\-  the  denial  that  the  plaintiff  performed  all  the  con- 
ditions precedent  on  his  part,  imposed  upon  him  the  burden  of  proving 
there  had  been  no  violation  of  that  particular  clause,  it  also  imposed 
upon  him  the  burden  of  proving  there  was  no  breach  of  either  of  the 
other  conditions,  and  for  want  of  such  proof  as  to  either,  he  must  fail, 
although  in  fact  neither  was  the  subject  of  any  real  controvers}'.  This 
would  be  an  unreasonable  requirement,  not  only  operating  as  a  hard- 
ship on  the  plaintiff,  but  in  most  cases  unnecessarily  prolonging  the 
trial.  Especially'  should  the  rule  be  as  we  have  stated  it,  under  our 
code  system  of  pleading,  a  prominent  object  of  which  was  to  so  simplify 
the  issues,  that  the  evidence  might  be  confined  to  the  real  matter  of 
dispute,  thus  expediting  the  trial  of  causes  and  facilitating  the  business 
of  the  courts.  The  vacancy,  or  want  of  occupanc}'  of  a  building  is  as 
much  an  affirmative  fact  as  its  occupanc}',  and  as  capable  of  proof; 
and  the  burden  upon  that  subject,  under  the  issues  in  this  case,  was, 
Vfe  think,  upon  the  defendant. 


V^ 


SEMMES   V.    HARTFORD   INSURANCE   COMPANY 

Supreme  Court  of  the  United  States,  December  Term,  1871. 

[Reported  in  13   Wallace,  15S.] 

In  error  to  the  Circuit  Court  for  the  District  of  Connecticut. 

Semmes  sued  the  City  Fire  Insurance  Company,  of  Hartford,  in  the 
court  below,  on  the  31st  of  October,  1866,  upon  a  policy  of  insurance, 
for  a  loss  which  occurred  on  the  5th  day  of  January,  1860.  The  policy 
as  declared  on  showed  as  a  condition  of  the  contract,  that  payment  of 
losses  should  be  made  in  sixty  days  after  the  loss  should  have  been 
ascertained  and  proved. 

The  company  pleaded  that  by  the  policy  itself  it  was  expressly  pro- 
vided that  no  suit  for  the  recover}'  of  any  claim  upon  the  same  should 
be  sustainable  in  any  court  unless  such  suit  should  be  commenced 
within  the  term  of  twelve  months  next  after  any  loss  or  damage  should 
occur ;  and  that  in  case  any  such  suit  should  be  commenced  after  the 
expiration  of  twelve  months  next  after  such  loss  or  damage  should  have 
occurred,  the  lapse  of  time  should  be  taken  and  deemed  as  conclusive 
evidence  against  the  validitv  of  the  claim  thereb}'  so  attempted  to  be 
enforced.  And  that  the  plaintiff  did  not  commence  this  action  against 
the  defendants  within  the  said  period  of  twelve  months  next  after  the 
loss  occurred. 

To  this  plea  there  were  replications  setting  up,  among  other  things, 


726  SEMMES   V.    HARTFORD   INSURANCE   CO.         [CHAP.   V. 

that  the  late  civil  war  prevented  the  bringing  of  the  suit  within  the 
twelve  months  provided  in  the  condition,  the  plaintiff  being  a  resident 
and  citizen  of  the  State  of  Mississippi  and  the  defendant  of  Connecticut 
during  all  that  time. 

The  plea  was  held  by  the  court  below  to  present  a  good  bar  to  the 
action,  nothwithstanding  the  effect  of  the  war  on  the  rights  of  the 
parties. 

That  court,  in  arriving  at  this  conclusion,  held,  fii'st,  that  the  condi- 
tion in  the  contract,  limiting  the  time  within  which  suit  could  be 
brought,  was,  like  the  statute  of  limitation,  susceptible  of  such  enlarge- 
ment, in  point  of  time,  as  was  necessary  to  accommodate  itself  to  the 
precise  number  of  days  during  which  the  plaintiff  was  prevented  from 
bringing  suit  by  the  existence  of  the  war.  And  ascertaining  this  by  a 
reference  to  certain  public  acts  of  the  political  departments  of  the  gov- 
ernment, to  which  it  referred,  found  that  there  was,  between  the  time 
at  which  it  fixed  the  commencement  of  the  war  and  the  date  of  the 
plaintiff's  loss,  a  certain  number  of  days,  which,  added  to  the  time  be- 
tween the  close  of  the  war  and  the  commencement  of  the  action, 
amounted  to  more  than  the  twelve  months  allowed  by  the  condition  of 
the  contract. 

Judgment  being  given  accordingly  in  favor  of  the  company  the  plain- 
tiff brought  the  case  here. 

The  point  chiefl\'  discussed  here  was  when  the  war  began  and  when 
itceased;  Mr.  W.  Hamersley,  for  the  plaintiff  in  error,  contending  that 
the  court  below  had  not  fixed  right  dates,  but  had  fixed  the  commence- 
ment of  the  war  too  late  and  its  close  too  earh',  and  he  himself  fixing 
them  in  such  a  manner  as  that  even  conceding  the  principle  asserted  by 
the  court  to  be  a  true  one,  and  applicable  to  a  contract  as  well  as  to  a 
statute  of  limitation,  the  suit  was  still  brought  within  the  twelve 
months. 

The  counsel,  however,  denied  that  the  principle  did  apply  to  a  con- 
tract, but  contended  that  the  whole  condition  had  been  rendered  impos- 
sible and  so  abrogated  by  the  war,  and  that  the  plaintiff  could  sue  at 
any  time  within  the  general  statutory  term,  as  he  now  confessedly  did. 

Mr.  R.  D.  Hubbard,  contra. 

Mr.  Justice  Miller  delivered  the  opinion  of  the  court. 

It  is  not  necessary,  in  the  view  which  we  take  of  the  matter,  to  in- 
quire whether  the  Circuit  Court  was  correct  in  the  principle  by  which  it 
fixed  the  date,  either  of  the  commencement  or  cessation  of  the  disability 
to  sue  growing  out  of  the  events  of  the  war.  For  we  are  of  opinion 
that  the  period  of  twelve  months  which  the  contract  allowed  the  plaintiff 
for  bringing  his  suit  does  not  open  and  expand  itself  so  as  to  receive 
within  it  three  or  four  years  of  legal  disability  created  b}'  the  war  and 
then  close  together  at  each  end  of  that  period  so  as  to  complete  itself, 
as  though  the  war  had  never  occurred. 

It  is  true  that,  in  regard  to  the  limitation  imposed  by  statute,  this 
court  has  held  that  the  time  ma}-  be  so  computed,  but  there  the  law 


SECT.    I.]  SEINIMES    V.    HARTFORD   INSURANCE   CO.  727 

imposes  the  limitation  and  the  law  imposes  the  disabilit}'.  It  is  nothing, 
therefore,  but  a  necessar}-  legal  logic  that  the  one  period  should  be 
taken  from  the  other.  If  the  law  did  not,  by  a  necessary  implication, 
take  this  time  out  of  that  prescribed  by  the  statute,  one  of  two  things 
would  happen  :  either  the  plaintiff  would  lose  his  right  of  suit  by  a 
judicial  construction  of  law  which  deprived  him  of  tlie  right  to  sue  yet 
permitted  the  statute  to  run  until  it  bccam*  a  complete  bar,  or  else, 
holding  the  statute  under  the  circumstances  to  be  no  bar,  the  defendant 
would  be  left,  after  the  war  was  over,  without  the  protection  of  any 
limitation  whatever.  It  was  therefore  necessary  to  adopt  the  time 
provided  by  the  statute  as  limiting  the  right  to  sue,  and  deduct  from 
that  time  the  period  of  disability. 

Such  is  not  the  case  as  regards  this  contract.  The  defendant  has 
made  its  own  special  and  hard  provision  on  that  subject.  It  is  not 
said,  as  in  a  statute,  that  a  plaintiff  shall  have  twelve  months  from  the 
time  his  cause  of  action  accrued  to  commence  suit,  but  twelve  montlis 
from  the  time  of  loss  ;  yet  b}'  another  condition  the  loss  is  not  paj'able 
until  sixty  da3-s  after  it  shall  have  been  ascertained  and  proved.  The 
condition  is  that  no  suit  or  action  shall  be  sustainable  unless  com- 
menced within  the  time  of  twelve  months  next  after  the  loss  shall  occur, 
and  in  case  such  action  shall  be  commenced  after  the  expiration  of 
twelve  months  next  after  such  loss,  the  lapse  of  time  shall  be  taken  and 
deemed  as  conclusive  evidence  against  the  validity  of  the  claim.  Now, 
this  contract  relates  to  the  twelve  months  next  succeeding  the  occur- 
rence of  the  loss,  and  the  court  has  no  right,  as  in  the  case  of  a  statute, 
to  construe  it  into  a  number  of  da3's  equal  to  twelve  months,  to  be  made 
up  of  the  daj's  in  a  period  of  five  years  in  which  the  plaintiff  could  law- 
fully have  commenced  his  suit.  So  also  if  the  plaintiff  shows  any 
reason  which  in  law  rebuts  the  presumption,  which,  on  the  failure  to  sue 
within  twelve  months,  is,  by  the  contract,  made  conclusive  against  the 
validity  of  the  claim,  that  presumption  is  not  revived  again  b}-  the  con- 
tract. It  would  seem  that  when  once  rebutted  fulh-  nothing  but  a  pre- 
sumption of  law  or  presumption  of  fact  could  again  revive  it.  There  is 
nothing  in  the  contract  which  does  it,  and  we  know  of  no  such  presump- 
tions of  law.  Nor  does  the  same  evil  consequence  follow  from  remov- 
ing absolutel}'  the  bar  of  the  contract  that  would  from  removing 
absolutely  the  bar  of  the  statute,  for  when  the  bar  of  the  contract  is 
removed  there  still  remains  the  bar  of  the  statute,  and  though  the  plain 
tiff  ma}-  show  by  his  disabilitv  to  sue  a  sufficient  answer  to  the  twelve 
mouths  provided  by  the  contract,  he  must  still  bring  his  suit  within  the 
reasonable  time  fixed  bv  the  legislative  authorit}',  that  is,  b}'  the  statute 
of  limitations. 

We  have  no  doubt  that  the  disability  to  sue  imposed  on  the  plaintiff 
by  the  war  relieves  him  from  the  consequences  of  failing  to  bring  suit 
within  twelve  months  after  the  loss,  because  it  rendered  a  compliance 
with  that  condition  inapossible  and  removes  the  presumption  which  that 
contract  says  shall  be  conclusive  against  the  validity  of  the  plaintiff's 


728  SEMMES   V.    HARTFORD   INSURANCE   CO.         [CHAP.    Y. 

claim.     That  part  of  the  contract,   therefore,  presents  no  bar  to  the 
plaintiff's  right  to  recover. 

As  the  Circuit  Court  founded  its  judgment  on  the  proposition  that  it 
did,  that  judgment  must  be 

lieversed  and  the  case  remanded  for  a  new  trial.^ 

'  See  also  New  York  Life  Ins.  Co.  v.  Statham,  93  U.  S.  24;  Thompson  v.  Phenix 
Ins.  Co.,  136  U.  S.  287  ;  Steel  v.  Phenix  Ins.  Co.,  51  Fed.  Rep.  715  (C.  C.  A.) ;  Jack- 
sou  V.  Fidelity  Co.,  75  Fed.  Rep.  359  (C.  C.  A.) ;  Earnshaw  v.  Sun  Mut.  Aid  Soc,  68 
Md.  465 ;  Eliot  Nat.  Bank  v.  Beal,  141  Mass.  566 ;  Mutual  Benefit  Life  Ins.  Co.  v. 
Hillyard,  37  N.  J.  L.  444. 


UNIVERSITY  OF  CALIFORNIA,  LOS  ANGELES 

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